LEGALITY OF CRDEPS

A Thesis

Presented To

The Judge Advocate Generals School

The opinions and conclusions expressed terein are those of the individual student author and do not necessarily represent the views of eitter T~e JudgeAdvocate Generals Schoolor any otter governmental agency Reference to this study should include the foregoing statenent

Captain Robert E Boyer 073238

April 1962

ftB 14 et

JL 35 19amp~b

A study to determine what factors tend to make illegal orders affecting the personal rights of inshydividuals An analysis and survey of military cases to determine what tests have been used to declare orders illegal A discussion of various trial and appellate problems relating to cases involving the legality of orders including raising the defense of illegality and submitting the issue to the court members

THE AUTHOR

This thesis was written by Captain Robert E Boyer while a student in the Tenth Career Class at The Judge Advocate Generals School U S Army

The author received the degree of LLB from the University of Arkansas in 1950 He is a member of the Arkansas Bar and has also been admitted to pracshytice before the United States Supreme Court Since becoming a member of the Judge Advocate Generals Corps in 1950 he has served in various assignments as Staff Judge Advocate Post Judge Advocate and Assistant Staff JudgeAdvocate

TABLE OF CONTENTS

CHAPTER I - INTRODUCTION raquo bull raquo bull bull

Necessity For Compliance With Orders In The Military Services

Military Necessity For Orders That Go Beyond The Scope Of Purely Official Matters bull bull raquo bull raquo bull

Necessity For Prohibition Against Orders That Unreasonably Restrict An Individuals Personal Rights

Scope Of Material To Be Covered

CHAPTER II - DETERMINING THE LEGALITY OF ORDERS

The Military Duty Test Of Legality Of Orders

Development Of The Martin Case Test Of Legality

Significance Of The Milldebrandt Case

Orders Regulating Marriage

Adequacy Of The Martin Test

Other Factors Affecting Legality

Orders That Violate Rights Guaranteed By UCMJ

Order To Perform Duty In An Officers Open Mess

Order Contrary To Military Usage

Lack Of Authority By Person Issuing Order bull raquo bull bull

Impossibility Of Compliance

TABLE OP CONTENTS (Continued)

Other MCM Proscriptions raquo 71

Summary 7^

CHAPTER III - CURRENT PROBLEM AREAS 82

Orders Relating To Privately Owned Vehicles 82

In General 82

Control Of Off-Post Traffic In Overshyseas Commands 86

Orders Imposing Restrictions On Type Of

Civilian Clothing That May Be Worn Off-Duty 95

Order Imposing Curfew 98

Order To Shave Beard Worn For Religious ilea sons bull bull bull laquo bull bull xuu

CHAPTER I - TRIAL AND APPELLATE PROBLEMS 105

Submitting The Issue To The Court Members 105

Raising The Defense Of Illegality 116

Responsibility Of The Trial Counsel 131

CHAPTER V - SUMMARY AND CONCLUSIONS 135

CHAPTER I

INTRODUCTION

Necessity For Compliance With Orders

In The Military Services

Compliance with lawful orders is probably the

most essential requirement in any military group It

is obvious that a military command could not function

without obedience to the lawful orders of military

superiors One might wonder as to the necessity for

discussion of such a time honored concept as obedience

to military orders However a very real and current

problem area exists as to the limitations on a military

commanders authority to issue orders that affect the

personal rights of his subordinates

In the armed services of our country only a lawshy

ful order need be obeyed The definition of a lawful

order becomes most important in cases arising under

Article 90 Uniform Code of Military Justice relative

to the willful disobedience of a superior officer

Article 91 UCMJ relative to the willful disobedience

of a superior warrant officer noncommissioned or petty

1 Act of May 5 1950 6f Stat 108 10 USCsectsect 801-9^0 (hereafter referred to as UCMJ or theCode)

officer5 and Article 92 UCMJ relative to the violation

of or failure to obey general orders and other lawful

orders

The question of whether or not an order is lawshy

ful has continuously arisen since the earliest days

of our countrys armed services This same question

continues to arise today particularly as to orders

that restrict personal rights of servicemen Recent

cases decided by the United States Court of Military

Appeals illustrate the necessity for restricting the

type of order that may legally be given by a superior 2 officer There are many other types of military

orders in effect today throughout our armed services

upon which military lawyers would disagree as to their

legality

In tracing the history of the requirement for

obedience to military orders we find such a requireshy

ment in the earliest recorded military codes Article

IV of the Articles of War of Richard II AD 1385

provided that everyone should be obedient to his

captain under penalty of losing his horse and armour

2 In United States v Nation 9 USCMA 72h 26 CMB50^ (1958) he general order in issue amounted to an unreasonable restriction upon servicemen1s right to marry

3 Chapter III infra

1+ and being placed in arrest Articles 18 19 and 25

of the Code of Articles of King Gustavus Adolphus of

Sweden (1621) required obedience to the orders of mili-

tary superiors under the penalty of death Our present

provisions contained in the UCMJ were derived from

Article I Section III of the Articles of War of

Charles I and Article 1 of the Articles of War of

James II (1688) The forerunner of our present Artishy

cle 90 UCMJ is found in Article VII of the American

Articles of War of 17757

With reference to obedience to orders the disshy

tinguished military author Colonel William Winthrop

states obedience to orders is the vital principle of

the military lifemdashthe fundamental rule in peace and

in war for all inferiors through all the grades from p

the general of the army to the newest recruit

Winthrop also recognized that an order that was not 9

lawful need not be obeyed

h Winthrop Military Law and Precedents 904- (2ded reprint 1920)

5 Id at 908-096 Id at 5697 Id at 95^8 Id at 571-729 Id at 575

The necessity for obedience to military orders is

recognized not only by military writers but by civilian

sources as well Corpus Juris Secundum sets forth the

following general principles concerning obedience to

orders

A prompt and unhesitating obedience to orders is indispensable to the attainment of the object of the military service and an inferior must obey the orders of his superiors according to their terms without any reference to his own judgment as to their propriety expediency or probable consequences unless the illegality of such order is so clearly shown on its face that a man of ordinary sense and understanding would when he heard it read or given know that the order was illegal10

It can readily be appreciated not only from the

above authorities but from common sense alone that

there must be obedience to lawful orders in the milishy

tary services Compliance with orders is such a serious

matter that Article 90 UCMJ allows the death penalty

for willful disobedience of a superior officers orders

in time of war

Military Necessity For Orders That Go Beyond

The Scoqe Of Purely Official Matters

As has already been noted only a lawful order

must be obeyed Paragraph 169b of the Manual for

10 CJS Army and Navy sectsect ifi at if 29

Courts-Martial in discussing the offense of willful

disobedience of a superior officer provides that

The order must relate to military duty and be one which the superior officer is authorized under the circumstances to give the accused A person cannot be conshyvicted under this article if the order was illegal but an order requiring the performshyance of a military duty or act is presumed to be lawful and is disobeyed at the peril of the subordinate

It can immediately be seen that the question of

whether an order relates to a military duty may be

highly controversial A strict view might be that to

be lawful an order must relate to a matter concerned

with a servicemans military duties alone and that

does not restrict personal rights 12

The United States Court of Military Appeals has

not applied such a strict standard There are valid

reasons why such a strict rule should not be followed

One of the most obvious reasons that comes to mind is

that due to the presence of our military personnel in

foreign countries it might be essential to place some

11 U S Dept of Defense Manual for Courts-Martial United States 1951 This Manual was originalshyly prescribed by the President by Executive Order No 1021^ Feb 8 1951 and will be hereafter referred to as the Manual It will be cited as MCM (195D

12 The United States Court of Military Appeals(hereafter referred to as the Court of Military Appeals or the Court) was created by the Act of May 5 1950

restrictions on what might normally be thought of as

the personal affairs of individual servicemen Thus

it may become necessary to place prohibitions upon the

exchange of personal property In the case of United 13 States v Martin J the Court of Military Appeals was

presented with a question concerning the legality of

an order to an accused sailor which required the sailor

to keep for his personal use cigarettes purchased on

board ship and not to use them for bartering The ship

was in foreign waters at the time and the order was

given by one of the ships officers who had observed

a great many cartons of cigarettes in the accuseds

locker The Court stated

That the order related to accuseds disposition of personal property owned by him does not render it illegal Disorders arising out of transactions between members of the Armed Forces and nationals of other countries can be prevented by those in comshymand even though the orders issued involved limitations on transferring of private propshyerty Here at the time the order was given the ship was en route to a foreign port where American cigarettes were at a premium and where black markets flourish3-^

15 In a subsequent case the Court had occasion to

discuss a general order which required military personnel

13 1 tJSCMA 67h 5 CMR 102 (1952) (Reversed onother grounds)

Ik I d a t 676 5 CMR a t 1C4 1 5 United S t a t e s v Yunque-BUrgos 3 USCMA ^ 9 8

13 CMR $h (1953)

in Germany to wear their military uniforms even when

in an off-duty status It could be argued that an

order of this type does not strictly relate to a milishy

tary duty and imposes an unreasonable restriction upon

an individuals personal dress while off-duty The

Court stated

The ofder prohibiting the wearing of civilian clothes was effective only in Germany the occupied country of a former enemy Our forces in that country are in proximity not only to our former enemies but to potential future enemies The success or failure of our military operations may well depend upon the orders of the Commanding Officer Among the precautions he is expected to take are those designed to establish control over the occupation forces Lack of control over these forces might not only embarrass this country but could very well spell the difference between success and failure of its occupation It is evident that the general orders published in this instanqe were directly related to the control of the occupation forces Only the uniform distinguishes the soldier from the citizen in the occupied territory A period of unauthorized absence from a unit in which his services are absolutely vital may be unduly prolonged if he is free to conceal his identity by this simple expedient Of great importance as well is the facility with which he can so disguised pass from the westernto the eastern zones of occupation Such a practice invariably leads to accusations of spying wholesale desertions and a variety of other allegations which needlessly multiply the vexations of our position there ldeg

16 Id at 500 13 Cm at 56

A good example of a case that upholds an encroachshy

ment upon what might normally be considered a matter 17of personal right is found in United States v Wheeler

There the Court upheld a general order in an overseas

area that required the prior written permission of the

military commander before a member of the command could

enter into marriage Other cases will be discussed

subsequently wherein the Court of Military Appeals has

found lawful under the existing circumstances orders

that restrict what are generally thought of as personal

rights rather than aspects of official military duty

Necessity For Prohibitign Against Orders That

Unreasonably Restrict An Individuals

Personal Rights

While it can readily be appreciated that some

orders must restrict personal rights and go beyond the

scope of purely official matters the necessity for

placing limitations- on a commander^ authority in this

field are equally obvious The fact that an- individual

is a member of the armed services should not make every

facet of his personal life subject to regulation by

his military superiors -

1 12 USQMA 38 30 CMR 38 (1961)

n Unied States v Nation the Court of Military

Appeals considered an order of the type referred to in

United States v Wheelerraquo supra This general order

also prohibited marriages by members of the command

bullwithout prior approval by the military commander

However the order provided for a six months waiting

period and had certain other restrictions not contained

in the general order involved in the Wheeler case In

finding this order to be an unreasonable interference

with the personal affairs of the accused the Court

stated

For a commander to restrain the free exercise of a servicemans right to marry the woman of his choice for six months just so he might reconsider his decision is an arbitrary and unreasonable interference with the latters personal affairs which cannot be supported by the claim that the morale discipline and good order of the command require control of overseas marriages19

The cases which will be subsequently analyzed and

compared will reflect that when a personal right of

a serviceman is restricted by a military order the

Court of Military Appeals will examine closely the

order to determine if it constitutes an unreasonable

restriction upon the personal affairs of the individual

18 9 USCMA 72f 26 CMR 5 (1958)19 Id at 727 26 CMR at 507

Chapter II infralaquo will consider cases decided by the

Court to ascertain the legal tests the Court has applied

in determining the legality of such orders

A military lawyer interested in a study into the

field of legality of orders will find that very little

has been written on this subject A cursory examinashy

tion of reported cases will reveal that the provisions

of the Manual do not provide sufficient guidance for

measuring the legality of orders in all cases This

is particularly true as to orders that restrict pershy

sonal rights of Individuals

The following-discussion will reflect that the

law relative to such orders has developed rapidly withshy

in the past four years The better method of illustratshy

ing this development is by a survey and analysis of the

more Important cases in the area A survey of these

cases will serve two important functions It will

indicate the specific areas in which the law has been

settled by the Court and it will reveal the legal tests

that have been utilized by the Court in determining the

legality of orders-raquo These tests will of course proshy

vide-guidance in- fceasnring the legality of questioned

orders that arise in the future

An examination of cases that have been before the

Court is particularly important at this time due to the

recent change in membership of the Court It is essenshy

tial to ascertain whether Chief Judge Quinn and Judge

Ferguson are in agreement on the tests to be applied

If they are not in agreement then it is obvious that

the appointment of Judge Kilday will be quite important

to the future development of the law in this field

Such a survey will also ascertain whether there is a

distinction between the authority of overseas commanders

and commanders in the United States in the issuance of

orders

Current problem areas will be discussed to ascershy

tain whether the rationale of decided cases can resolve

these problems Opinions expressed relative to these

problem areas will be examined to determine if these

opinions are in line with the principles announced in

recent cases decided by the Court

In addition the following material will also

discuss various trial and appellate problems relating

to cases involving the legality of orders such as

raising the defense of illegality and submitting the

issue to the court members

CHAPTER II

DETERMINING THE LEGALITY OF ORDERS

The Military Duty Test Of Legality

When considering a case in which the legality of

an order is in issue the first inclination of a lawyer

is to search for a legal test by which the legality of

the questioned order can be measured A military law-of

yer who was not familiar with the Impactrecent cases

in this field would very probably turn to the Manual

as a convenient starting point in his research

He would find that the Manual does contain a proshy

vision that has been often cited by the service boards

of review and the Court of Military Appeals as constishy

tuting the proper standard to apply in testing a quesshy

tioned order That portion of the Manual provides

The order must relate to military duty and be one which the superior officer is authorized under the circumstances to give the accused20

This provision of military law is not new The 21

19^9 Manual for Courts-Martial contained identical

language in discussing the Sixty-fourth Article of War

relative to disobeying a superior officer

20 Par 169b MCM (195D21 U S Dept of Army Manual for Courts-Martial

United States 19+9 This Manual was promulgated by Presidential Executive Order No 10020 Dec 7 194-8 It will be hereafter cited as MCM (19^-9)

This particular test for legality is found under

the substantive discussion relating to Article 90 UCMJ

which pertains to the willful disobedience of a superior

officer However the same standard is to be applied

in cases involving the willful disobedience of orders

issued by warrant officers noncommissioned officers 23

and petty officers arising under Article 91 UCMJ

The Manual indicates a somewhat different test to be

applied to general orders and regulations in cases

arising under Article 92 UCMJ by providing

A general order or regulation is lawshyful if it is not contrary to or forbidden by the Constitution the provisions of an act of Congress or the lawful order of a superior 24-

However the subsequent discussion will illustrate

that actually the same test or tests will be applied

regardless of whether the particular offense falls

under Articles 90 91or 92

In objectively analyzing the military duty test

for legality of orders it must be conceded that this

provision does not really furnish a great deal of guishy

dance After all just what does the term military

22 This provision of the Manual will hereafter bereferred to as the Military Duty test

23 Par 170a MCM (195D2h Par 171a MCM (195D

duty mean And when is an officer authorized under

existing circumstances to give a particular order If

it is desirable to have a test for legality that furshy

nishes a degree of real guidance it would seem that the

military duty test falls short of such a goal

Prior to condemning this provision as being too

general in nature it would be well to examine the

reported cases to ascertain if these cases develop the

military duty test to a point where it is of practical

guidance

An examination of board of review cases prior to

the establishment of the Court of Military Appeals is

of little value in this regard This is due to the

fact that in the vast majority of such cases examined

it was found that the board report did not announce a

test rationale in the decision These reports normally

provide a recital of the facts with a subsequent conshy

clusion that the order was or was not a lawful order

It is probably as a result of this tendency that early

boar d of review cases are seldom mentioned in the

opinions of the Court of Military Appeals in cases

dealing with the legality of orders

The brxgtad language of the military duty test

probably accounts for the large number of cases contained

in board reports in the field of legality of orders

An advocate for the defense could certainly argue that

only orders that relate directly to official military

duties as distinguished from personal affairs should

be found to relate to military duty On the other

hand if a liberal interpretation is applied the

argument could be made that any order to or restriction

placed upon a servicemember necessarily relates to the

members military duty due to his status as a member

of the military services

One of the better earlier opinions dealing with

the extent of the commanders authority in regulating

the personal transactions of members of his command 25

will be found in the case of United States v Hill

The board of review opinion set forth the following

general principles

25 ACM S-2898 5 CMR 665 (1952) The particularorder questioned In this case was a hospital regulation prohibiting loans or other financial transactions beshytween hospital personnel and patients Appellate deshyfense counsel attacked the regulation on the ground that it was an unwarranted arbitrary and unlawful interference with the private rights of personnel The board of review found the regulation to be an apshypropriate and necessary safeguard for the protection of pstifthts fthm hospital personnel on whom the patient must depend and$ therefore lawful

Any regulation which tends to regulate the conduct of members of the military estabshylishment in order to properly maintain disshycipline and efficient discharge of the military mission is legal and proper26

This language indicates that in determining the

legality of a questioned order one should look to see

if the order was necessary to the military mission

In other words military necessity is a very important

factor This is not to say that all orders will be

held lawful if the commander believed the order neces-27

sary to his mission However this case is one of

the very few earlier cases in the field that provide

any practical guidelines that may be followed in other

cases involving different types of orders It will be

observed later that the Court has adopted this military

necessity aspect into the Courts own opinions The

subsequent analysis of cases will also reflect that

reasonableness as well as necessity must be considered

in determining the legality of an order

Even the Court of Military Appeals was slow to

prescribe any standard other than that the order relate

26 Id at 66827 In United States v Wysong 9 USCMA 2^9 26

CMR 29 (1958) an order was held by the Court to be unlawful even though the military commander believed the order to be necessary to maintain the combat capability of his unit

to military duty and be authorized under the circumshy

stances The Court all too often applied the military

duty test to specific factual situations without furshy

ther defining the limits of the test While this

tendency did provide guidance for future cases involvshy

ing similar factual situations it did very little to

furnish guidelines for general use

The Court first referred to the military duty test 28

in the case of United States v Trani This case

however really involved the question of whether an

order to a prisoner to perform close order drill had 29

been given for the purpose of unauthorized punishment

or for legitimate military training The Court thereshy

fore had no reason to discuss the military duty test

at length For a period of several years the Court

continued to refer to this provision as the proper

standard to be applied but failed to provide narrow

guidelines within the broad test In each instance the

Court merely found that the particular order involved

did or did not relate to a military duty and was or

was not authorized under the circumstances The cases

28 1 TJSCMA 293 3 CMR 27 (1952)29 Par 115 MCM (19^9)

of United States v Voorhees3 in 195^ and United States 31

v Musguire in 1958 are examples of this practice

although the latter case did somewhat narrow the definishy

tion of military duty by holding that it was not the

duty of a person to assist in the production of evishy

dence in violation of his privilege against self-

incrimination

It would appear from what has been said to this

point that there is no definite yardstick by which the

legality of a questioned order may be measured in the

absence of a reported decision on a case involving the

same type of order It would follow that the Court

exercises the broadest type of discretion on individual

factual situations by deciding that the particular order

did or did not relate to a military duty and was

or was not authorized under the circumstances

Therefore in the absence of a more definite yardstick

the military commander would apparently also have a

great deal of discretion in deciding whether his order

actually related to a military duty and whether the

30 h USCMA 509 16 CMR 83 (19J0 This case isdiscussed in more detail at p 22~25 infra

31 9 USCMA 67 25 CMR 329 (1958) This case isfurther discussed at p 55-56 infra

order was authorized under the existing circumstances

It must of course he realized that it would be

exceedingly difficult if not impossible for the Court

to prescribe a formula that could be applied to each

questioned order that might arise in the future to

ascertain the legality or illegality of that order

It may be argued that a test as broad as the military

duty test is necessary to encompass all the many types

of factual situations that may arise With this in

mind let us examine the more recent trend of the Court

in the area of legality of orders particularly orders

that affect personal rights of individual servicemen

Development Of The Martin Case Test

Of Legality

The first occasion on which the Court indicated

that there might be a different test to determine the

legality of questioned orders occurred in United States 33

v Martin This was the case in which the accused

sailor who had purchased numerous cartons of cigarettes

on board his ship was ordered by one of his ships

officers to keep the cigarettes for his personal use

32 This is very probably the reason for the existshyence of the type of orders referred to in the problem areas discussed in Chapter III infra

33 1 USCMA 67^ 5 CMR 102 7l952) This case waspreviously referred to in Chapter I p 6 supra

and not to use them for bartering The ship was in a

foreign port at the time The accused was subsequently

convicted of willful disobedience of this order The

conviction was reversed by the Court of Military Appeals

due to the insufficiency of evidence showing disobedishy

ence of the particular order However the important

point of this case is the test set forth by the Court

for use in determining the legality of this type of

order This case is cited more often than any other

case as announcing the test for legality of an order

that restricts personal rights

Appellant Defense Counsel contended the order was

illegal since it did not relate to a military duty

The Court found that under the existing factual situashy

tion the officer was authorized to issue the order and

set forth the following test for legality of orders

All activities which are reasonably necessary to safeguard and protect the morale discipline and usefulness of the members of a command and are directly connected with the maintenance of good order in the services are subject to the control of the officers upon whom the responsibility of the command rests 31

The Court found that In view of the difficulties

encountered in controlltng undercover transactions and

31 Id at 66 5 CMR at 10^

the disorders they create the authority of the superior

officer could reasonably include any order or regulation

which would tend to discourage the participation of

35 American military personnel in such activities

It might be asked at this time whether this test

announced by the Court is of any more practical assistshy

ance than the military duty test Isnt the same amount

of discretion involved in determining whether a questioned

order was reasonably necessary to safeguard and protect

the morale discipline and usefulness of the members of

a command as is involved in determining whether an order

related to military duty The question might also be

asked as to whether this particular test is really

any different than the military duty test Also of

interest is whether this test is limited to orders

restricting personal rights or is to be applied in all

cases The language contained in the Martin opinion

35 The opinion does not mention any significancethat may have been attached to the fact that the acshycused purchased the cigarettes on board his ship If the Court attached any importance on the source of the cigarettes the opinion does not so indicate The thrust of the opinion is that the prohibition of such profishyteering activity will promote morale discipline and usefulness of the members of the command and will reshysult in the maintenance of good order in the services The source of the cigarettes would not be material in this regard

36 This test announced by the Court will be hereshyafter referred to as the Martin test

does not indicate that the application of the test Is

limited in any way To provide answers to these quesshy

tions let us now turn to the subsequent history of the

Martin test

Although the Martin case was cited as indicating

the extent of the commanders authority in two board of

37 review cases It was not again referred to by the

Court of Military Appeals until the case of United 38

States v Voorhees some two years later

In this case an Issue arose ac to whether a parshy

ticular regulation violated the accused officers

constitutional right of free speech Army Regulations

provided that personnel on active duty were required to

submit their writings to military authorities for review

prior to such articles being submitted to a publisher

The accused failed to comply with these regulations and

even eventually refused to withdraw his articles from

his publishers after having been ordered to do so by

his commanding general In discussing the many issues

involved In this case the Court found that the Army

Regulations were not an unconstitutional abridgement of the

accuseds freedom of speech The Court pointed out in this

37 ACM 6111 Ewing 10 CMR 612 (1953) involving ageneral regulation forbidding the fraudulent possession or use of ration cards and ACM S^B^ Barnes 12 CMR 735 (1953) involving a base regulation prohibiting taking tax free cigarettes off base

38 h USCMA 509 16 CMR 83 (195+)

connection that the right to free speech is not an

indiscriminate right and that restraints which reasonshy

ably protect the national interest do not violate the

Constitutional right of free speech This was one of

the Courts earliest announcements of how far the milishy

tary might lawfully go in restricting an individuals

freedom of speech

An equally interesting aspect o^ this case was the

Courts discussion of the legality of the order to the

accused from his commanding general to withdraw his

manuscript from his publishers The Court stated that

the order was not palpably illegal on its face since it

clearly related to a military duty and cited paragraph

169b of the Manual It will be observed that here the

Court was referring to the military duty test as the

proper standard to apply in testing the legality of this

order In this same connection the Court noted that

military personnel may properly be controlled in their

disposition of personal property when such disposition

is not protected by any Constitutional provision or

Congressional enactment and is contrary to the require-39 ments of the service The Court cited the Martin case

as authority for this proposition but did not discuss

39 Id at 529 16 CMR at 103

the test set forth in that case for ascertaining the

ko legality of orders

The issue as to the legality of this order involved

the interpretation of a number of executive directives hi

as well as the Army Regulation in question Aside

from the utilization by the Court of the military duty

test and the reference to the Maxilll case the opinion

contains an excellent discussion of the limitations that

M-0 This case standing by itself would seem to indicate that the Court had not intended to prescribe a general test for legality of orders in the Martin case but had only held in that case that under certain circumstances a servicemans disposition of personal property was subject to military control Subsequently discussed cases will reflect that the Martin case went much further

M-l Directives from the President and two Secretaries of Defense indicated that in view of the Korean conflict manuscripts and other materials prepared by military personnel should be examined for security purposes by an appropriate military reviewing agency prior to pubshylication Army Regulations implementing these direcshytives provided for such a review but were subject to being interpreted as applying to a policy as well as to a security review The evidence reflected that the reluctance of the reviewing authorities to approve the accuseds articles for publication was based on policy rather than security considerations The Court found that an interpretation of this Army Regulation which permitted policy as well as security review would be inconsistent with a memorandum of the Secretary of Defense as this memorandum had limited the review to security matters The order of the accuseds superior officer to withdraw the manuscripts from his publisher was therefore held to be illegal as it was intended to enforce restrictions other than security

may legitimately be placed on a servicemans freedom of

speech

There was little indication by the Court that the

Martin case had actually established a general test for

the legality of orders until the case of United States 3 v Milldebrandt some six years later This is one of

the more important cases in the area of orders that

restrict personal rights and is cited in most of the

Courts opinions dealing with such orders in the last

three years In the Milldebrandt case the accused who

was heavily burdened with personal financial problems

requested a thirty-day leave in order to obtain civilian

employment and augment his income The leave was granted

but was conditioned upon his making certain weekly reshy

ports The officer authorizing the leave testified that

^2 The question of the applicability of the proshytections of the first ten amendments to the United States Constitution to military personnel has of course been the subject of much discussion Whether the First Amendment guaranteeing freedom of speech is applicable to service personnel will not be incorporated into this text However it is submitted that the Voorhees case is authority for the proposition that a serviceman does have certain protected rights relative to his freedom of speech but that these rights laquoay be limited by reashysonable restrictions See also the discussion of United States v Wysong 9 USCMA 2^9 26 CMR 29 (1958) at p 35-37 infra -raquobull-gt

$3 8 USCMA 635raquo 25 CMR 339 (195amp)

he as the accuseds superior officer was required to

submit a weekly written report to the executive officer

concerning the accuseds financial condition As a

result he ordered the accused to report his financial

transactions at certain specified times during the perishy

od of leave

The accused failed to do so and was subsequently

convicted of willful disobedience of this order

Judge Latimer was author of the principal opinion of

the Court with Judge Ferguson concurring in the result

The opinion first notes that not every order directing

an accused to make a full disclosure about his personal

business is valid In this connection the opinion

states

A command to file a complete and comshyprehensive report may compel an accused to disclose transactions which have a tendency to incriminate him or which might subject him to the imposition of sanctions or which

M+ The convening authority approved only the lesser included offense of failure to obey a lawfulorder 8 USCMA at 636 5 CMR at 1^0

+ Appellate counsel for both sides agreed that an order to report the status of indebtedness may be lawshyfully issued by a commanding officer The principal opinion expressly points this out and states that for the purpose of the case then before the Court it is unnecessary to express an opinion on that particular conclusion This would seem to indicate the Courts unwillingness at least at that time to agree with such a concession by appellate counsel

would breach confidential communications Furthermore such a directive might require him to publicize financial involvements which are of no concern to the military community Certainly the legality or illegality of the order must be determined by its terms and here the allegations of the specification leave everything to the imagination of the pleader Unless orders concerning personal dealings by their terms are limited to the furnishing of information which essentially does not narrow or destroy the rights and privileges granted to an accused by the Code or other principles of law they should not be considered as legal In this inshystance the evidence found in the record is of no assistance in determining the legality or illegality of the order The officer merely directed the accused to report to him on his financial affairs during stated periods The nature of the information ordered to be furnished is not shown and for aught that appears the accused might have been required to give a detailed statement of every financial transaction engaged in by him while off-duty It should be apparent that if the order was as broad as that the accused might be prosecuted for failure to disclose information of a conshyfidential or incriminating nature While we do not pass on the legality of all orders dealing with personal business we do not believe the authority of a commanding officer extends to the point that an accused can be ordered to make all facets of his personal dealings public Accordingly under the facts of this case we believe the order given to be so all-inclusive that It is unenforceshyable Certainly we believe that unless an order of this type is so worded as to make it specific definite and certain as to the information to be supplied so that it can be measured for legality the only penalty which can be enforced is revocation of the leave^6

h6 8 USCMA at 637-38 25 CMR at llfl-M-2

The principal opinion then noted that the question

of whether the accused would be compelled to comply

with such an order if legal while in a leave status

was one of first impression with the Court Winthrop

is quoted as expressing the opinion that when a soldier

is on leave he ceases to be subject to the orders of

his commander except that in the event of some public

exigency requiring his services an order discontinushy

ing his leave or otherwise disposing of him as the

public interest may require would be lawful The

opinion then notes that it seems reasonable to conclude

that when an enlisted man is granted leave he ought

not to be subject to orders requiring him to perform

strictly military duties unless their performance is

compelled by the presence of some grave danger or

unusual circumstance The opinion indicates that there

may be some exceptions to this general rule but that in

the instant case there was no immediate military necesshy

sity for a commander to issue this particular type of

The principal opinion while not expressly citing

the Martin case refers to the Martin test in the

hy Winthrop Military Law and Precedents 91 (2d ed reprint 1920)

following language

That order was not necessary to the sucshycessful pursuit of any military mission and it was not required to maintain the morale discipline or good order of the unit or to keep the military free from disrepute^

The opinion then held that if there is any duty on a

serviceman to furnish personal financial data it canshy

not be made mandatory while he is not on a duty status

The opinion concluded with the following language

We will leave for future determination how far military commanders may go in carryshying out a financial responsibility program if at all but for the purpose of this case we hold that the duty imposed was illegal in the light of the accuseds status at the time it was disobeyed^9

Chief Judge Quinn prepared a separate concurring

opinion in which he expressed his doubts about certain

implications of the principal opinion He expressed

his concern over the implication that the Court approves

Winthrops conclusions relative to the necessity for

military personnel on leave to obey orders Secondly

he expressed his concern over the implication in the

principal opinion that when an order can be construed

as legal or illegal the latter is preferable to the

former Thirdly he expressed his concern over the

raquo+8 8 USCMA at 638 25 CMR at lM-2 raquo+9 8 USCMA at 639 25 CMR at l+3

implication that it is a rule of law rather than a stateshy

ment of policy that persons on leave cannot be required

to perform strictly military duties Judge Quinn then 50

found the order to be illegal by an application of the

test set forth in the Martin case In expressing his

opinion that the order was illegal Judge Quinn stated

If an order imposes a limitation on a personal right it must appear that it is reasonably necessary to safeguard and protect the morale discipline and usefulness of the memoers of a command and directly conshynected with the maintenance of good order in the services In cases of this kind we must look closely to the connection between the personal act required by the order and the needs of the military service As the principal opinion points out the order here is completely unrelated to any requirement of the military service51

Both the principal opinion and Judge Quinns conshy

curring opinion make it clear that all three judges

were then in agreement that the rationale of the Martin

50 The word illegal as used throughout this textsimply indicates that the particular order is so void of lawfulness that the subordinate may not be punished under the UCMJ for a violation of the order It does not infer that the superior issuing the order has comshymitted a criminal offense in issuing an illegal order The word illegal is used throughout this text In the same sense as the Court uses the term In discussing cases in this area

51 8 USCMA at 639 25 CMF at 113 Judge Qulnnsstatement to the effect that the order is completely unrelated to any requirement of the military service Is certainly arguable It will also be observed that Judge Quinn is perhaps indicating that the Martin test is apshyplicable only in situations involving orders that affect personal rights

test srould be applied in cases involving tre legality

of orders that restrict personal rights The two

opinions also specifically emphasize that there must be

a definite connection between the personal act required

by the order and the needs of the service We observe

that the idea of military necessity is definitely beshy

coming a major part of the Courts rationale in testing

the legality of such orders Judge Quinns concurring

opinion also indicates quite clearly that the needs of

the service must be balanced against the restriction

placed on the individual serviceman

Another important principle announced in this case

is that orders restricting the personal rights of serv-

icemembers must be narro ly and tightly drawn so as to

be specific The Court points out that an order as

broad as the one in the present case may compel the

accused to incriminate himself or disclose confidential

communications Subsequently discussed cases will inshy

dicate that the Court is quite concerned with the broad

or narrow scope of such an order

As to the portion of the principal opinion dealshy

ing with obedience to orders while in a leave status

52 The principal opinion did not expressly limitthe rationale of the Martin test to orders involving personal rights

this language should certainly not be construed to inshy

dicate that a servicemember is not bound by lawful orders

while in a leave status There is little doubt but that

the Court would hold the servicemember even while in

a leave status legally bound by off-limits orders or

orders for example not to cross into Russian occupied

zones It would appear that such a servicemember would

also be bound by the type of order referred to in the 53 Yunque-Burgos case relative to the wearing of the

uniform while in an off-duty status The principal

opinion in the Milldebrandt case indicates that there

may be exceptions to the general rule that a serviceman

on a leave status should not be saddled with his ordishy

nary military duties Chief Judge Quinns concurring

opinion makes clear his exception to any Implication

that service personnel on leave are not bound by lawful

orders

Prior to leaving this discussion of the Milldebrandt

case it might be well to mention that the military servshy

ices may very well have a perfectly legitimate interest

in the financial practices- of a serviceman A dishonorshy

able failure to pay just debts is eonduct proscribed by

Article 13+ of the UCMJ as service discrediting conduct

53 SeeChapter I p 6 supra

and may also subject the servicemember to action under

administrative regulations

Of equal interest to the military commander is the

check cashing practices of his subordinates The probshy

lem of orders restricting an individuals right to cash

checks has been before both Army and Air Force boards

of review 51+

In United States v Wilson the commanding officer

of the accused officer ordered the accused to refrain

from drawing any checks for any amount on any bank until

evidence was presented to the accuseds headquarters

that he had sufficient funds deposited in the bank

The accused subsequently violated this order and was

convicted of disobedience of the order The test of

legality applied by the board of review was whether the

order related to a military duty The board found that

the order did relate to a military duty and affirmed 55 the conviction

It might be asked whether these decisions conform

to the principles announced by the Court of Military

Appeals in the Milldebrandt caseraquo It could certainly

5gt+ CM 351835 h CMR 311 (1952) 55 SeeACM 12539 Kaplaraquo 22 CMR 825 (1956) which

involved a similar orderThe Air Force Board of Reshyview applied the same test of legality and reached the same result

be argued that such an order directly restricts a pershy

sonal right and is analogous to the order compelling

disclosure of personal indebtedness held to be illegal

in that case However the differences between the two

situations are quite obvious The Court in the Millde-

brandt ease was very concerned with the possibility

that so broad an order might compel the accused to

furnish information that would be self-incriminating

The language previously quoted from the opinion indishy

cates that the Court was concerned with the fact that

the accused might have been required to give a detailed

statement of every financial transaction engaged in by

him while off-duty Such a report would certainly have

been beyond the needs of the military

In the Wilson and Kapla cases the orders involved

were certainly specific In situations where a problem

exists due to the servicemembers continuous cashing of

insufficient fund checks there should be a sufficient

necessity for such action by a commander By balancing

the needs of the service against the particular right

that Is restricted by the order It would seem that the

Court would hold orders restricting the cashing of

checks under these circumstances to be lawful On the

other hand such an order given without any grounds

other than the commanders desire to assure that members

of his command do not cash insufficient fund checks

would appear to be illegal as violating the military

necessity requirement Each factual situation would

of course govern the legality of such an order

Shortly after the Milldebrandt case the Court again

had occasion to consider the legal effect of a very

broad order restricting a personal right In United

States v Wysong the facts indicate that an official

investigation was in progress at the accuseds post to

inquire into alleged incidents of sexual misconduct

and immorality involving the accuseds wife minor

step-daughter and several members of his company The

company commander became aware of efforts by the accused

to impede the progress of the investigation by interroshy

gating and threatening potential witnesses The company

commander ordered the accused not to talk to or speak

with any of the men in the company concerned with this

investigation except in line of duty The justificashy

tion later offered by the company commander in his

testimony for issuing the order was that he was worried

about the consequences if the personnel of the company

continued the rumors and accusations He testified

56 9 tJSCMA 2^9 26 CMR 29 (1958)

that he felt this internal dissension affected the comshy

bat capability of his company

The accused subsequently violated this order and

was convicted for this offense Upon review the Court

of Military Appeals held that the order in question was

so broad in nature and all-inclusive in scope as to

render it illegal The Court further found that the

order severely restricted the accuseds freedom of

speech and noted that the order not only restrained

the accused from communicating with certain persons on

57 duty but off duty as well

57 Concerning a servicemans right to freedom of speech it has already been noted in the Voorhees case suprar that this right is subject to reasonable limitashytions With relation to orders that restrict an inshydividuals right of free speech an interesting opinion was expressed by The Judge Advocate General in SPJGA 19^2765 (March 22 19^6) In 19+6 a garrison commandshyer in Germany issued an order forbidding soldiers of his command to express agreement with anti-Russian sentiments in their conversation with the German civilshyian population The order was apparently issued due to a fear that a propaganda effort was under way to divide the Allies by spreading anti-Russian propaganda among the United States occupation forces

The opinion was expressed that the order was legal and appropriate to the accomplishment of the military mission of forces occupying- the territory of a recently defeated enemy and the maintenance of security and order among the civilian population as well as security order and discipline within the conaatid Although this opinion was expressed several years prior to the cases we have been discussing it would seem that the rationale of the Courts opinions would agree with the expressed opinion See also SPJA 19M7851 (August 1 194+) where the opinion was expressed that an order imposing an

The Court noted another defect in the vagueness

and indefiniteness of the order in failing to specify

the particular persons concerned with the investigashy

tion The Court then noted that they were not holding

that an order of the type here sought to be employed

could never attain the status of a legal order and

pointed out that if the order had been narrowly and

tightly drawn and so worded as to make it specific

definite and certain it might well have been a lawshy

ful order In discussing the illegality of this order

the Court did not refer to any specific test for ascershy

taining the legality of orders other than an order of

the type here involved must be narrowly and tightly

drawn and so worded as to make it specific definite

and certain

One of the more recent examples of the Courts

treatment of an order restricting a personal right is 58

found in United States v Wilson In this case the

accused had confessed to criminal investigators that he

57 (Continued) absolute prohibition against theuse of a foreign language under any circumstances by military personnel stationed at a post within the United States was of doubtful legality See CM 3885^-5 Bayes 22 CMR U-B7 (1956) wherein it wa$ held that aiding the enemy by propaganda activities was not within the right of free speech

58 12 USCMA 165 30 CMR 165 (1961)

had stolen a tape recorder from an Air Force Exchange

while under the influence of alcohol The accuseds

squadron commander then restricted the accused to his

billets and ordered him not to indulge in alcoholic

beverages The accused was subsequently convicted of

disobeying this order

Appellate counsel agreed that in accordance with

the rationale of the Martin and Milldebrandt cases

every order is presumed to be legal but if the order

imposes limitations on the personal rights of an indishy

vidual it must be connected with the morale discipline

and usefulness of the military service Appellate deshy

fense counsel contended that this order was illegal

because it was without limit as to time or place or the

reasonable requirements of the military service

The Court noted that a single drink of beer would

violate the order as definitely as the consumption of

a fifth of whiskey and a drink to toast the health or

welfare of a friend in the privacy of his quarters was

as much prohibited as a drinking spree in a public

tavern The Court then concluded that

In the absence of circumstances tending to show its connection to military needs an order which is so broadly restrictive of a private right^pf an individual is arbitrary and illegal

59 Id at 166 30 CMR at 166

The opinion in the Wilson case refers to an earlier

decision by a board of review in the case of United

States v Wahl In that case the accused was reshy

stricted and ordered not to indulge in alcoholic bevershy

ages Shortly thereafter he was found in an intoxicated

condition at the Officers Club He was subsequently

convicted of a violation of that order The Air Force

board of review set aside this finding of guilty on the

ground that in its operation and effect the order was 61

unrelated to military duty and therefore illegal

The board of review and the Court of Military Appeals

therefore reached the same result on similar facts when

the board applied the military duty test and the Court

applied the Martin test

Perhaps the most recent and significant developshy

ments in the field of orders that affect personal rights

have taken place in the cases involving general orders

regulating marriage in overseas areas These cases are

particularly significant because they provide an inshy

sight into the attitudes of all three judges presently r

60 ACM h7h2 h CMR 767 (1952) petition for review denied h CMR 173 (1952)

oTT See CM 302885 Payne 59 BR 133 (19^5) to the effect that an order prohibiting drinking of intoxicashyting beverages while on duty is legal

on the Court And if our final conclusion should he

that the Judges are free to exercise the broadest type

of discretion in this area it becomes vitally important

to ascertain the individual attitudes of the Judges 62

In the case of United States v Nation a general

regulation promulgated by the Commander United States

Naval Forces Philippines established a procedure to

be followed by all members of the command prior to

entering into marriage The written permission of the

commander was required prior to marriage The regulashy

tion required that a request for permission to marry

should be prepared by the applicant with the assistance

of his chaplain and when completed endorsed by the

applicants commanding officer which endorsement was

to include a positive recommendation of approval or

disapproval and any other information deemed advisable

regarding the applicants performance of duty and moral

character The regulation further required that as to

marriages between military personnel and aliens a six-

month waiting period would be required prior to final

approval of the application The accused submitted his

application to marry a Philippine national Six months

and three days later he married without the Commanders

62 9 USCMA 72h 26 CMR 50^ (1958)

written permission The application had never been

forwarded to the Commander because it lacked the required

inclosures In discussing the legality of this regulashy

tion the Court stated

General regulations which do not offend against the Constitution an act of Congress or the lawful order of a superior are lawful if reasonably necessary to safeguard and protect the morale discipline and usefulness of the members of a command and directly connected with the maintenance of good order in the services United States v Martin 1 USCMA 67f 5 CMR 102 paragraph 171 Manual for Courts-Martial United States 1951 United States v Milldebrandtlaquo 8 USCMA 635 25 CMR 139D3

The Court held that the regulation was so broad

and unreasonable that it could not be used as a basis

for prosecution The Court found it necessary to conshy

sider only the requirement of the six-month waiting

period to conclude that the regulation was an arbitrary

and unreasonable interference with the accuseds pershy

sonal affairs which could not be supported by the

claim that the morale discipline and good order of

the command required control of overseas marriages

63 Id at 726 26 CMR at 506 It should be notedthat in this language the Court hascombined the test for legality contained in Par^ 1734 MCM (195l) relashytive to the violation of general orders and the reshyquirements of the Martin test

6f The Court did however indicate that this regshyulation contained other arbitrary1 restrictions 9 USCMA at 726 26 CMR at 506

Some two years later an Army Board of Review had

occasion to pass upon the validity of a somewhat similar 65

general order In United States v Jordan a general

order issued by Headquarters U S Army Caribbean

provided that no military member of the command should

marry an alien without the prior written approval of

the Commanding General The general order further reshy

quired that an applicant must apply for such approval

three months in advance ootain parental consent if

under age secure police clearances health certificates

certain affidavits a chaplains recommendation birth

certificates and provide evidence of his ability to

support a wife The accused who was already legally

married violated this general order and married an

alien without the required permission He was subshy

sequently convicted of bigamy and failure to obey a

lawful order

65 CM 1+03928 30 CMR k2h (I960) petition forreview denied 30 CMR if 17 (I960)

66The general order recited that it was in impleshymentation of Army Regs No 600-2^0 (October 1+ 1953) and 608-61 (September 20 1957) These same regulashytions are currently in effect and emphasize the various difficulties servicemembers may encounter as a result of entering into marriages to aliens

67 The accuseds bride was a minor Ke obtainedthe consent of a Panamanian court to marry her by falsely swearing that there was no impediment to the marriage

The facts of this case certainly seem to make a

strong argument as to why this type of general order

should be found to be reasonable rather than arbitrary

and capricious Had the accused followed the requireshy

ments of the general order a bigamous marriage with

the accompanying tragic results to the minor girl

probably would have been avoided

The board of review distinguished this case from

tke Nation case and held the general order to be lawful

The board found that the three months waiting period

was not unreasonable as it would take approximately

three months to obtain the various documents needed to

support the application The boards opinion also noted

that in the Nation case the Courts opinion indicated

that provisions contained in the naval regulation other

than the six months waiting period were equally arbitrary

and unreasonable The board therefore concluded that

the general order under consideration may very well

have differed in many other respects than the mandatory

waiting period

The boards opinion discusses generally orders

that restrict personal rights It notes that the Martin

test is to be applied in measuring the legality of such

68 orders

Shortly after this decision a Navy Board of Review 69

was presented with substantially the same problem

The general order questioned was a revision of the order

involved in the Nation case The revised order omitted

tne six montrs mandatory waiting period and provided

for expeditious processing of applications The board

found the regulation to be lawful Rather than analyze

the logic of the result at this time let us look at

the Courts treatment of this same revised regulation 70

in United States v Wheeler

The revised regulation required the military memshy

ber and his prospective spouse to meet with a chaplain

for counselling The new regulation also required the

68 The opinion states that Other restrictions onthe right of the individual to enjoy his property have likewise been recognized and the test of the lawfulshyness of an order or regulation which interferes with this right is the legitimacy of the grounds underlying the directive United States v Milldebrandt supra United States v Martin (No hJft) 1 USCMA 67+ 5 CMR 102 If it appears that the regulation or conshytrol of personal activities is reasonably necessary to safeguard and protect the morale discipline and usefulshyness of the members of a command and are directly conshynected with the maintenance of good order in the service1the regulation is legitimate If on the other hand an order is motivated by a desire to impose a sumptuary restriction or by whim or personal bias it would clearly be arbitrary unreasonable and so illegitimate

69 WC NCM 60-00615 Levinskv 30 CMP 6 1 (I960)70 12 USCMA 387 30 CMR 387 (1961)

military person concerned to present a medical certifishy

cate showing both himself and the intended spouse to be

free from mental illness infectious veneral disease

active tuberculosis or major communicable disease The

regulation further required the written consent of a

parent or guardian if the parties are under twenty-one

years of age A major difference between this regulashy

tion and the one condemned in United States v Nation

was that the revised regulation required expeditious

processing of the application with no arbitrary waiting

period

All appellate counsel announced their agreement

with the principle enunciated in the Martin case that

a military order or regulation is legal if it protects

or promotes morale discipline good order and the

usefulness of the command They also agreed that such

an order might reasonably limit the exercise of a per-71

sonal right Appellate defense counsel contended

that the regulation was Invalid in that it constituted

an unlawful restraint on the accuseds personal right

to marry The principal opinion of the Court prepared

by Chief Judge Quinn and concurred in by Judge Latimer

held the revised regulation to be lawful The accused

71 Id at 388 30 CMR at 388

contended that the regulation was an intrusion into

religious practices and could not be asserted against

a civilian such as his prospective spouse This conshy

tention was predicated upon the provision that required

both parties to meet with a military chaplain The

Court held that the operation of the regulation upon a

prospective civilian spouse was wholly incidental to

its regulation of military personnel The Court further

found that nothing in the regulation interferred with

the exercise of the accuseds religious beliefs

The Court then discussed whether the marriage of

service personnel serving overseas may be the subject

of regulation by military commanders In this connecshy

tion the Court stated as follows

Activities of American military pershysonnel in foreign countries may have different consequences from the same activities performed in the United States What may be relashytively unimportant in an American environment can be tremendously significant in a foreign background For example marriage in the United States to a person having active tuberculosis may not be cause for too great concern because of the availability of medical facilities for treatment cure and control of the spread of the disease but in a foreign community where the medical services may be few and demands upon the service very heavy It may be necessary to prohibit military personnel from marrying a civilian suffering from such condition In order to safeguard the health and morale of other military personnel We need only say that in our opinion a military commander may at least in foreign

areas impose reasonable restrictions on the right of military personnel of his command to marry72

The Court found that the requirements as to preshy

sentation of medical certificates and written consent

of parents were reasonable The Court further found

that the waiting period required by the processing of

an application was not unreasonabledue to the requireshy

ment contained in the regulation for expeditious proshy

cessing

Judge Ferguson dissented and expressed his opinion

that the principles announced in the majority opinion

would furnish authority for the control of marriages

of service personnel to American citizens in the United

States Ke emphasized that the test for the legality

of orders and regulations was set forth in the Martin

case He expressed his opinion that the present case

was analogous to the Milldebrandt case where the Court

held an order unlawful due to the complete lack of conshy

nection between the order and any requirement of the

military service

Judge Ferguson concluded that an order requiring

a commanders permission to marry was void on its face

due to its lack of connection with the morale discipline

72 Id at 388-89 30 CMR at 388-89

and usefulness of the members of a command or the mainshy

tenance of good order and discipline Re stated that

he would also find the requirement for a pre-marriage

interview with a Navy chaplain to be unreasonable as

a violation of the servicemembers religious freedom

Inasmuch as Chief Judge Quinn and Judge Ferguson

disagree as to the legality of such an order the view

of Judge Kilday is of the utmost importance In the 73

recent case of United States v Smith the identical

general order involved in the Wheeler case was again

presented to the Court Judge Kilday was author of the

principal opinion and in finding the general regulation

to be lawful stated that he was in accord with the

majority opinion of the Wheeler case

As the more recent cases of the Court are examined

in the area of orders that affect personal rights it

becomes apparent that the Court will apply the test

they first announced in the Martin case This has parshy

ticularly been true since 1957 Each of the present

Court members has now expressed his inclination to apply

the rule contained in the Martin case to such orders

However it is equally apparent that in the application

73 12 USCMA 56^ 31 CMR 150 (1961)

of that test to a specific factual situation the Court

members may very well disagree as to the result

Having established that the Court will apply the

Martin test to questioned orders that restrict personal

rights it would be well to take a closer look at the

test itself We might ask just what is the real crishy

teria of this test It is certainly important to ascershy

tain if the test provides practical guidelines that may

be applied to future questioned orders in factual situshy

ations not foreseen at this time It is also important

to consider whether a better test might be utilized or

if not whether the Martin test might be improved

The test provides that in order to be lawful an

order restricting a personal right must be reasonably

necessary to safeguard and protect the morale discishy

pline and usefulness of the members of the command and

directly connected with the maintenance of good order

in the services The previously discussed cases have

indicated that the most important two words in the test

are reasonably necessary All members of the Court

continuously refer to the aspects of reasonableness

and military necessity

Tt might then be asked whether a test based on

these two elements alone might not be more satisfactory

In other words the test might be that the order must

be reasonable and necessary to the needs of the service

The disadvantage of this test would be in the wide latishy

tude of discretion involved in deciding what is reasonshy

able and what might be necessary to the needs of the

service Nearly all officers and non-commissioned

officers consider themselves to be reasonable men Tt

therefore follows that they would consider all of their

orders to be reasonable under the circumstances And

if the order wasnt necessary to the needs of the

service they wouldnt have issued it in the first

place Something more than reasonableness and

necessity must be included in the test if there is to

be any degree of uniformity in its application Thereshy

fore the order must be reasonably necessary to safeshy

guard and protect the morale disciplinet and usefulshy

ness of the members of the command and directly connected

with the maintenance of good order in the service

This additional requirement serves to tie the reasonableness

7+ Various problem areas involving questioned orders will be discussed in Chapter III Infra There is little doubt but that the commanders issuing such orders strongly considered1 them to be reasonable and necessary

and necessity aspects to something more specific and

this must be done if the test is to furnish any practishy

cal guidelines for general use

The Court has never defined the words morale

discipline and usefulness as they are used in the

Martin test The words are fairly well known in the

military and the obvious impact of the Courts failure

to define them is that the common understanding is inshy

tended To define these terms would further limit the

Martin test and would very probably cause more misunder-75

standing as to the limits of the test To provide

any specific definition for the words would undoubtedly

do an injustice to the test as it presently stands

Any legal test of this type must be general in

scope to provide for the countless factual situations

that will arise in the future At the same time the

test should be specific enough to prevent its misuse

by one desiring a certain result

The Martin test seems to achieve this result At

least it seems to come as close to it as is humanly

possible It must be admitted that the test is subject

75 The dictionary of U S Army Terms Army RegsNo 320-5 (January 1961) does not contain a definishytion for any of the three words Various dictionaries examined define the terms in varying ways

to criticism as being too broad However there is no

more precise yardstick that could oe successfully utilshy

ized for this purpose

One other aspect of this problem might be mentioned

at this time This aspect relates to the control of

the military cy a Court composed of civilians in the

important area of legality of orders Is the Court to

be criticized for second-guessing the military commander

on the reasonableness and necessity of orders to memshy

bers of his command The argument might be presented

that the military commander is in a much better position

to apply the artin test than the members of the Court

It would seem that such an argument is not well

grounded The idea of control over the military by

civilians is not new in our country As to the type

of control by the judiciary that is involved in our

present situation it must be remembered that the Court

pay exercise some control over the military in almost

any of the Courts decisions This idea of judicial

review is traditional to our way of life Congress

has provided in the UCMJ that only lawful orders need

76 Even an attempt to provide narrow separatetests for varying factual situations must fail To utilize a more specific test will destroy the usefulshyness of such test to unforeseen questioned orders

oe obeyed The final decision as to whether a quesshy

tioned order is lawful is properly in the hands of the

judiciary rather than the commander who issued the order

From an examination of the previously discussed

cases one might obtain the impression that whenever the

legality of an order is in issue the Court will always

apply either the military duty test or the Martin test

in measuring the legality of the questioned order

Such an impression would be erroneous as the Court has

applied different standards under certain specific

factual categories These categories should be conshy

sidered at this time as the standards applied by the

Court directly determined the legality or illegality

of the questioned orders

A significant area in the field of legality of

orders involves orders that violate rights guaranteed

to a servicemember by the UCMJ Problems in this area

arise as to the admissibility of evidence obtained as

a result of suchorders as well as to the legality or

illegality of the order

One of the earlier cases illustrative of this area

is United States v Rosato in which a superior ofshy

ficer ordered the accused who was suspected of an

offense to submit samples of his handwriting The

commanding officer had been advised by the Staff Judge

Advocate that such an order was authorized by paragraph

l50b of the Manual The accused refused to comply with

the order and was subsequently convicted of willful

disobedience of this order The Court held that the

order violated the accuseds privilege against self-

incrimination provided for in Article 31raquo UCMJ and

was therefore illegal No mention was made of either

the military duty test or the Martin test In another 73

case the accused was ordered during his trial to read

a sentence from the Manual for the purpose of voice

identification The Court found that this order vioshy

lated the accuseds privilege against self-incrimination

guaranteed by Article 31raquo UCMJ The Court noted that

where the provisions of the Manual such as paragraph

159b authorizing such orders conflict with the UCMJ

the latter will prevail

77 3 USCMA l+3 11 CMR i+3 ( 1 9 5 3 ) 78 United S t a t e s v Gree r 3 USCMA 576 13 CMR 132

(1953)

A su-Dsequent case before the Court involved an

order to an accused from his commanding officer to

furnish a criminal investigator a urine specimen to be

used to determine the presence or absence of narcotics

The accused refused and was subsequently convicted of

willful disobedience of this order The Court held

that the order was in contravention of Article 31

UCMJ and was therefore illegal Judge Ferguson in a

concurring opinion discussed at length his view of the

legality of orders that require self-incrimination

Judge Latimer dissented on the ground that compelling

an accused to furnish a urine specimen falls within

that class of acts which are not in contravention of

law sinee it requires only passive rather than active

cooperation on the part of the accused

In both the Greer and Jordan cases no mention was

made of any specific test for legality The Court was

satisfied as to the illegality of the order from the

fact that it violated Article 31UCMJ In United 80

States v Musguire the accused who was suspected of

drunkenness and certain other-offenses was ordered by

a medical officer to submit to a blood alcohol test

79 United States v Jordan 7 USCMA M52 22 CMR2k2 (1957)- - bull bullbull-

ampQ 9 USCMA 67 25 CMR 329 (1958)

He refused and was subsequently convicted of willful

disooedience of this order The Court found that order

to be illegal as it was in contravention of Article 31

UCMJ In reaching the result that the order was illegal

the Court referred to the military duty test for legality

In this connection the Court stated

The Manual for Courts-Martial United States 1951 points out that the lawful command contemplated by Article 90 must relate to military duty Paragraph 169b It is evident that it is not the duty of a person to assist in the production of evishydence which may convict him of a crime

In considering the above cases it must be rememshy

bered that not all orders resulting in a degree of self-

incrimination are illegal In United States v Smith

a general regulation of Headquarters United States Army

Europe required military personnel involved in motor

vehicle accidents involving personal injury death or

property damage of a specified amount to Immediately

8l See United States v Hill 12 USCMA 9 30 CMR 9 (I960) wherein the Court held that evidence resultshying from a blood alcohol test may be admitted where the accused had been informed of his Article 31 rights by the medical officer advised that he could-be ordered to provide a blood sample for medical purposes that the result of such test could not be used as evidence against him if he refused to consent to the taking of such a test and thereafter the accused consented tb the test The Court noted that an order to provide a sample of blbofl for clinical purposes is valid

82 9 USCMA 2^0 26 CMR 20 (1958)

submit reports of such accidents The accused failed

to comply with this regulation and was convirted under

Article 92 UCMJ for this offense Appellate defense

counsel contended that the regulation was violative of

the accuseds right against self-incrimination guaranshy

teed by Article 31 UCMJ The Court noted that pursushy

ant to the agreement between the Allied Powers and the

Federal Republic of Germany the Allies had retained

the right to license their own military operators of

private motor vehicles to require the registration

thereof and to provide for appropriate identification

The Court made a survey of various state statutes

requiring such reports decisions under these statutes

and subsequently concluded that the regulations did not

contravene the drivers privilege against self-

incrimination Judge Ferguson in a concurring opinion

held that in this case no Article 31 question was in

issue He further expressed the opinion that had the

accused complied with the regulation the Government

would not have been permitted to utilize the subject

matter of the report in prosecuting the accused for other

offenses which grew out of the accident itself

83 The other Court members did not disagree withJudge Ferguson on this matter It is submitted that such a report would be inadmissible as violative of Article 31raquo UCMJ upon a subsequent trial of an accused for negligent homicide arising out of such an accident

Another aspect of this problem was involved in

United States v Faskins where the accused custodian

of Air Force Aid Society funds was ordered by his

superior officer to turn over fund records even though

the accused was in confinement under charges of having

embezzled from another fund and presumably had hidden

the missing records The Court held that a custodian

of such a fund has a pre-existing legal duty irrespecshy

tive of the investigation to surrender such records

upon proper demand Judge Ferguson dissented on the

grounds that the accused had not been shown to have

possession of the records prior to being compelled to

surrender them

This short discussion is certainly not intended

to exhaust the field of legality of orders that compel 85

some measure of self-incrimination Time does not

permit a lengthy and detailed coverage of this area as

a complete discussion could encompass a work as lengthy

as the present one The point to be brought out by

referring to the above cases is that a body of law has

been developed by the Court in this area The cases

Hh 11 USCMA 365 29 CKR l8l (I960) 85 This subject is treated in greater detail in

U S Dept of Army Pamphlet No 27-172 Military JusticemdashEvidence Chapter XIII (1961)

reflect that the Court does not apply either the milishy

tary duty test or the Martin test to these factual

situations If the Court finds tre order contravenes

Article 31 UCMJ the order is illegal Fad the Court

chose to apply the military duty test or the Martin

test to these cases thlaquo= results should be tie same

As the Court noted in the Musguire case it is not the

duty of a servicemember to supply evidence to assist in

his conviction Under the Martin test compulsory self-

incrimination would not seem reasonable or necessary

to the military mission The final result achieved by

the Court is certainly just and proper An order reshy

quiring compulsory self-incrimination in violation of

Article 31raquo UCMJ should certainly be an illegal order

Order To Perform Duty In An Officers

Open Mess

An example of the Courts application of a standard

designed to fit one specific factual situation is found Of

in United Sta tes v Robinson The facts of that case

r e f l e c t tha t the accused a f te r volunteering was

assigned as a cooks helper a t the Fort McNair Off icers

Open Mess He subsequently became d i s s a t i s f i ed with

his dut ies and eventually refused to obey a d i r ec t order

86 6 USCMA 3+7 20 CMR 63 (1955)

from the mess officer to perform his duties He was

Appellate defense counsel argued that assignment

to this particular duty was illegal and that the order

was therefore without validity This argument was based 87

on the federal statute prohibiting an officer from

using an enlisted man as a servant After considering

the various issues involved in the case the Court found

that the proper test to be applied was that set forth

by an Array Board of Review in the case of United States 88

v Semioli and quoted that test as follows

The test to be applied in a case wvere the question of disobedience of an illegal order is involved is not whether the work which the accused was ordered to do in an officers mess was menial in nautre such as KP clerical work or janitor work but rather whether these services were to be performed in the capacity of a private servant to acshycomplish a private purpose or in the capacity of a soldier ie to accomplish a necessary military purposedeg9

The Court then found that the messing of officers

at the Fort McNair Officers1 Open Mess was a military

necessity rather than a personal service to a particshy

ular group of officers and that the questioned order

87 This provision of law is now found in 10 USCsectsect 3639 (1956)

8raquo CM 280115 53 BB 65 (19^5)89 6 USCMA at 353 20 CMR at 69

was legal ^he Court made no mention o either the

military duty test or the Martin test and applied a

different test ^or this specific type of duty The

language of the test itself would seem to limit its

use in measuring the legality of orders to situations

involving an Officers1 Open Mess However there is no

reason why the same rationale should not be applied to

similar orders such as orders to cut grass pick up

debris and like orders The principle of the Robinson

case would be equally applicable That is the nature

of the work is really not as important as the purpose

for which the work is to be accomplished If an order

of this type is given to accomplish a necessary milishy

tary purpose the order is legal even though obedience

may require the most menial type of labor This case

also illustrates that the Court is always interested

in the military necessity behind the order

In discussing the legality of orders Winthrop

states that a serviceman may lawfully disobey an illeshy

gal order He further states that such an order must

90 For a discussion of an earlier view that a solshydier could not legally be ordered to perform duties in an officers open mess see CM 2h67 Shields 32 BR l+9 (19MO-

be clearly repugnant to some specific statute to the

law or usage of the military service or to the general 91 law of the land Ee then cites as examples of such

orders

An order given by a company commander to a soldier to have his washing done by a particular laundress GCMO 87 Dept of tgte Fast 1871 An orcVr requiring a soldier to assist in building a private stable for an officer 0~M0 130 Dept o Dakota 1379 An order requiring a soldier to act as an officers servant Digest 28 An order forshybidding a soldier to contract marriage Id An order requiring a post band to play in a neighboring town for the pleasure of the citizens A superior officer has no right to take advantage of his military rank to give a command which does not relate to military duty or usages or which has as its sole object the attainment of somp private end Manual 19 In an early case in our service that of Col Thos Butler (New Orleans 180+) the officer refused to obey as illegal an order to crop his hair Ke was tried and sentenced to be reprimanded and on again disobeying was rearrested Some seventy-five persons civil and military headed by Maj Gen Jackson addressed to Congress a formal protest against his treatshyment and asked that he be relieved from persecution This appears to have been the end of the matter Am S P Mil Af vol 1 P 173-^92

It would seem that the legal tests previously

discussed would furnish the appropriate guidelines for

testing the legality of the orders contained in the

91 Winthrop Military Law and Precedents 575(2d ed reprint 1920)

92 Ibid

above quoted material However the Court of Military

Appeals has apparently never ruled one way or the other

on the question of whether an order may be illegal beshy

cause it is contrary to military usage This argument

was advanced to the Court in the case of United States

v Vansant In that case the accused was found sleepshy

ing at night in the rear area of his unit in Korea

He was ordered by a warrant officer to proceed to the

forward area to join his platoon The accused refused

to obey the order and was subsequently convicted of

willful disobedience The evidence at the trial reshy

flected that there was a well defined trail from the

rear area to the forward area but it had not been

traveled alone at night and the usual procedure after

dark was to send not less than two men on this trail

In discussing the defense contention that the

order should be held illegal as contrary to military

usage the Court held that the evidence failed to

establish such a usage and even assuming that it did

the accused did not refuse to obey on that basis The

Court further noted that even if it was assumed a stanshy

dard procedure had been adapted by the company such a

93 3 tJSCMA 30 11 cm 30 (1953)

generally accepted practice could be modified by order

of the company commander

Tt seems highly unlikely that an order would be

illegal solely because it was in contr-vpntion of

military usage Fowever since the Court has not exshy

pressly so stated the concept of military usage should

be noted

Lack 0^ Authority By Person Issuing Order

In the event the person issuing thp order lacks

the necessary authority to direct the action required

9+ by the order it is obvious that the order is illegal

This situation has frequently arisen when an officer

ordered his subordinate to do something which would

9^ It might be well to mention at this point the validity of a defense to charges that is based upon obedience to orders This situation may arise when a subordinate is ordered by his superior to do an act which would constitute an offense It may be generally stated that an act done in obedience to orders is exshycusable when the order is apparently legal and the serv-icemember does not know it is illegal Normally if an order is apparently regular and lawful on its face the subordinate need not go behind it However if the order is obviously illegal the subordinate may not fall back on obedience to a superiors orders as a defense to his criminal actions A perfect example of this principle is found in ACM 7321 Kinder lh CMR 7h2 (195+) where the accused murdered a civilian on the orders of his superior officer The Air Force Board of Review in discussing the defense of obedience to orders found that the order was so obviously beyond the scope of authority of the superior officer and so palpably illegal on its face as to put the accused on note as to its illegality

amount to punishment that the officer had no authority

to impose It is often necessary to examine the factual

situation very closely to ascertain just exactly what

was to be accomplished Qy the order

In one of the more significant cases in this 95 field an accused prisoner had intentionally destroyed

certain stockade records For this misconduct he was

assessed four hours of extra labor per day -for seven

days by the confinement officer The assistant confineshy

ment officer recommended that the accused be required

to perform additional close order drill as a corrective

measure for his lack of discipline This recommendashy

tion was adopted by the confinement officer Lhe acshy

cused subsequently refused to perform this close order

drill even after being given a direct order to do so

by the assitant confinement officer The particular

drill ordered was not a part of the regular compound

drill session in which all prisoners participated and

it was to be carried out in addition to the usual close

order drill

The accused was subsequently convicted of willful

disobedience of the order of the assistant confinement

officer In deciding the case the Court of Military

95 United States v Trani 1 USCMA 293 3 CMR 27(1952)

Appeals referred to the Manual provision that an order

must relate to military duty and be one which the supeshy

rior officer is authorized under the circumstances to 96

give the accused The Court then noted that in the

event the close order drill was intended as punishment

the order would be illegal due to the Manual provision

prohibiting imposing drill and other military duties 97 as punishment After reviewing the facts of the case

the Court found that there was no showing that the

order was imposed as punishment and that an order to

perform close order drill for training under the existshy

ing circumstances was a lawful one 93

The case of United States v Roadcloud contained

many similarities to the above case However the facts

there indicated that the drill ordered by the accused

prisoners superior officer was intended as punishment

rather than training The board of review therefore

held the order to be illegal as being beyond the comshy

mand authority of the officer issuing the order

The Court of Military Appeals considered a some-99what analogous situation in United States v Bayhand

9 6 I d a t 295 3 CMR a t 29 97 P a r 115 MCM (19^9 ) 9 8 CM 356552 6 CMR 38+ (1952) P e t i t i o n for r e shy

view d e n i e d 7 CMR bk- (1952) Wi6USCMA 762 21 CMR Hh (1956)

In this case the accused an unsentenced prisoner

-ias working with and performing the same duties performshy

ed by sentenced prisoners He subsequently refused to

ooey an order connected with his assigned duties and was

convicted of willful disobedience of orders issued by

both a superior officer and a non-commissioned officer

The Court found from the evidence that compliance

with the orders would have required the accused to

perform the same work under the same conditions in

the same uniform and without distinction or difference

from other prisoners who were being punished as senshy

tenced prisoners The Court then found that orders reshy

quiring the accused to perform such duties would amount

to punishment and would violate Article 13 UCMJ which

prohibits such punishment prior to trial The orders

were therefore held to be illegal as being beyond the 100

authority of those issuing the orders

An officer issuing an order may lack the authority

to obligate Government funds necessary to carry out the

order In United States v Marsh a soldier in an AVOL

100 See also CM 39+689 McCarthy 23 CMR 561 (1957)wherein an order requiring what amounted to confinement in a company guard room was held to amount to punishshyment and was thus illegal

101 3 USCMA +8 11 CMR hH (1953)

status surrendered at an Army installation other than

his own station The installation confinement officer

purported to give him an order directing that he travel

at Government expense to his home station The Court

noted in its opinion that the confinement officer lacked

the authority to issue an order in his own name involvshy

ing travel allowances as gte had no authority to commit

federal funds for this purpose

Subsequent to the Marsh case there followed a

series of cases in which travel orders under similar 102

circumstances were found by the Court to be illegal

In these cases the Court pointed out that authority to

issue travel orders is prescribed by law and regulations

and that officers not authorized by such law or regulashy

tions to issue travel orders were without authority to

issue such orders

Suppose an officer issues what appears to be a

perfectly valid order but the officer has reason to

know that the accused will be unable to comply with

102 United States v Young 8 USCMA 70 2h CMP 70(1957) United States v Long 8 USCMA 93 23 CMR 317 (1957)3 and United States v Matthews 8 USCMA 91+ 23 CiMR 3id (1957) All three cases involve travel orders issued by a warrant officer in his own name rather than in a representative capacity in behalf of a superior officer

the order It would seem that regardless of whether

the military duty test or the Martin test is applied

the order would be illegal A case on this specific

point has apparently never been before the Court or the

service boards of review A case that was somewhat analshy

ogous was before an Air Force board of review in Uni ted

States v Gordon The facts indicate that the acshy

cused was living off base without the necessary pershy

mission required by his unit Pis commanding officer saw

him at 1510 hours on a certain day and gave him an

order to move himself clothing and baggage back to his

quarters on base approximately twenty-four miles away

by 2M-00 hours The accused was without funds or any

means whatever to accomplish the move and so advised

his commanding officer The accused subsequently failed

to obey the order and was convicted of this offense

The board of review in setting aside the findings

of guilty noted that compliance with the order within

the limited time depended on uncertain factors such as

the ability of the accused to hitchhike t e distance

or borrow money to pay for transportation or borrow

a vehicle The board noted that an order for performance

of a military duty cannot be predicated on such uncertainties

103 ACM S-2130 3 CMR 603 (1^52)

when they are within the knowledge of the officer issushy

ing the order The board further stated

Situations can be envisioned in which the order in this case could be proper and valid no matter what hardships the recipient had to endure but under the circumstances o this case te Board considers Captain Senkbeils order (insomuch as it directed the trip to Liverpool) illegal for the reason that obedience necessitated expenditures of accuseds personal funds which expenditure the officer had no riglt to demand in this situation Noncomshypliance was due to accuseds lack of funds not to dereliction on his part--

This decision should certainly not be taken as

authority for the proposition that a soldier cannot

De given a lawful order if the order requires him to

expend his personal funds The board pointed out that

an order to a service member to have his duty uniform

cleaned or to get a needed Vaircut may very well be

legal orders

In the event the officer issuing the order is not

aware that his subordinate lacks funds necessary to

comply with an order the order itself would be legal

but an affirmative defense may very well be placed into

issue Such a situation arose in United States v 105

Pinkston

10U- Id at 606 105 6 DSCMA 700 21 CMR 22 U956)

The evidence reflected that as a result of an inshy

spection the accused was ordered to purchase two tropishy

cal uniforms he was required to have but which he had

not yet obtained Fe was ordered to procure these

uniforms within three days and to have available at

that time evidence as to the circumstances of the purshy

chase of the uniforms

The accused testified at his trial for disobeying

the order that it had been impossible for him to purshy

chase the uniforms because of his poor financial condishy

tion He attempted to obtain an advance in pay and to

borrow money but had been unsuccessful in each instance

The Court found that impossibility due to financial

incapacity may constitute a valid defense and the acshy

cuseds conviction was reversed due to the failure of 106

the law officer to so instruct

Other MCM Proscriptions

There is one other provision contained in the

Manual that should be considered with relation to the

legality of orders That provision is contained in the

106 A physical inability to comply within ordermay also be an affirmative defense United States v Helms 3 USCMA hQ 12 CMR 19+ (1953)

discussion of Article 90 UCMJ and provides as follows

Disobedience of an order which has for its sole object the attainment o^ somlt= private end or wMch is given for the sole purpose of increasing the penalty ^or an offense which it is expected the accused maycommit is not punishaole under tMs article 10

The first proscription contained in the above

provision was found to have been violated in United

States v Parker ^e accused airman had been inshy

volved in an automobile accident witl an officer from

his base The officer ordered the accused to report to

the officers place of duty the following morning The

accused failed to report to the officer as ordered and

was subsequently convicted of a failure to obey the

order of his superior officer The Air Force Board of

Review found that there was no legitimate military need 109

for the order and that the palpable import of the

order was to gtave the accused present to discuss his

liability for damaging the officers automobile The

board held that an order given for such purpose was one

given for the attainment of a private end and was acshy

cordingly illegal

107 Par I69tgt MCM (195D108 ACM S10012 18 CMR 559 (195+)109 The officer was not the accuseds commanding

officer nor one who wouldlt normally exercisejamplampcipllne over the accused

The principle contained in the latter proscription

of the above Manual provision has been recognized for

many years Dy the services An early case illustrative

of this was United States v Tracz The accused a

prisoner had refused to obey an order of his stockade

sergeant The confinement officer repeated the order

to the accused who again refused to obey At the trial

of the accused for disobedience of the second order

the confinement officer testified that he gave the

accused this particular order because the previous disshy

obedience was of a minor nature when compared to the

disobedience of a commissioned officer The accused

was convicted of willful disobedience of the confineshy

ment officers order The Army Board of Review found

the order was given for the sole purpose of increasing

the penalty for an offense which the accused was expect-Ill

ed to commit and that the order was therefore illegal

These two proscriptions have become so firmly

entrenched in military law over the years that cases

involving them are not very likely to arise at this

110 CM 2199I+6 12 BR 317 (19W111 This case must be distinguished from cases in

which the purpose of the order was to obtain obedience and not merely to expose the accused to a greater punishshyment In this connection see CM 2amp1923 Eosford 5h BR 261 (19^5) bull

Summary

It may be said in summary that the law has been

defined in certain limited areas involving legality o^

orders The cases have shown us the principles to be

applied in cases involving orders given for the attainshy

ment of private ends orders given solely for the purshy

pose of increasing the penalty for an offense which the

accused is expected to commit orders to perform duties

in Officers Open Messes orders given to accomplish

unlawful punishment orders that violate rights guaranshy

teed by the UCMJ orders that place unreasonable reshy

strictions on an individuals freedom of speech orders

relative to the disposition of personal property

orders requiring the reporting of personal indebtedness

orders prohibiting the drinking of intoxicants and

orders restricting the right of marriage

As to areas that have not yet been before the

Court of Military Appeals we know that the Court will

apply certain legal tests to measure the legality of

questioned orders We have learned that all three of

the Judges are in agreement on the tests to be applied

even though they may reach different-Qonolusions reshy

sulting from the application of such tests as in the

Wheeler case

The cases indicate that the Court has not always

been uniform as to what specific test should be applied

to a given factual situation In certain cases the

Court has applied the test set forth in the Manual

This test requires that to be legal an order must relate

to military duty and be one which the superior officer

is authorizpd under the circumstances to give the

accused

In another group of cases relating to orders tlat

restrict personal rights the Court applied the Martin

test This test requires that to be legal an order

must be reasonaoly necessary to safeguard and protect

the morale discipline and usefulness of the members o^

a command and must be directly connected with the mainshy

tenance of good order in the services

In the application of this latter test we observed

in the Mllldebrandt and Wilson cases that the Court

will look closely to ascertain whether the order was

necessary tcopy the successful pursuit of a military mission

The cases examined further reflect that the Court is

quite interested in whether the particular order was

reasonable under the existing circumstances or whether

it appeared to be arbitrary and capricious

It was also noted in the Wysong and Mllldebrand^

cases that orders restricting personal rights of indishy

viduals must be narrowly and tjghtly drawn ard so wor~pd

as to be specific definite and certain In other words

when an order restricts a personal right of a serviceshy

man it must be narrow in scope so that it will not be

any more of a curtailment of personal rights than is

necessary to accomplish the military need which required

the order in the first place

The Court has applied other tests than the two

previously mentioned to specific factual situations

It has been pointed out that a somewhat different test

was applied in the Robinson case dealing with orders

to perform duties in officers messes The series of

cases relative to orders that violate the right against

self-incrimination guaranteed by the UCMJ reveal that

such a violation in itself will render the order illegal

In the event the Court finds that the superior lacked

the necessary authority to issue the order under law

or regulations the order will be found to be illegal

Cases in this category would include orders requiring

the obligation of funds when the superior had no authorshy

ity to obligate such funds and orders given to effect

a punishment that the superior had no authority to impose

Fowever the law as to these categories of cases has

been fairly well settled by the Court Our main area

of concern at this time should be the recent developshy

ment of the law as it relates to orders that more directshy

ly restrict personal rights of servicemembers

It might be asked just how is one to predict

whether the Court will apply the military duty test or

the Martin test to an order of that type An examinashy

tion of the cases decided by the Court reveals that in

the area of orders that apply more specifically to

official duty matters as distinguished from personal

rights the Court has generally applied the military

duty test In the area of orders that restrict pershy

sonal rights the Court has applied the Martin test

It is realized that it is not always possible to draw

a clear-cut line Detween orders that affect official

duty matters and those that affect personal rights

An example of this may be found in the order involved

in the Milldebrandt case to report on personal indebtedshy

ness matters or the Voorhees case orders that restricted

the use of the accuseds writings dealing with Army

subjects These types of orders go both to official

and personal matters lt -

It is clear however that the recent trend of

the Court is to apply the Martin test in the event the

questioned order involves personal rights of the accused

As to orders that pertain to strictly official matters

alone there is no indication that the Court will depart

from the military duty test For example should the

Court consider an order to a soldier to clean an area

of the supply room it is hardly likely that the Court

would look to see if such an order was reasonably

pline and usefulness of the members of a command and

was directly connected with the maintenance of good

order in the services Such a test is designed for

orders that affect an individuals personal rights or

affairs As to an ordinary order to perform a military

duty the Court would look only to see if the order

related to a military duty and was one which the supeshy

rior was authorized to give under the circumstances

This has been shown by the Courts application of the

military duty test subsequent to the Martin case

It is submitted that these two tests may not be

as different as they may first appear The real criteria

of the Martin test appears to consist of two main eleshy

ments These are reasonableness and military necessity

The language of the test states that the order must

be reasonably necessary to safeguard and protect the

morale discipline and usefulness of the members of a

command and must be directly connected with the mainteshy

nance of good order in the services The cases disshy

cussed in this Chapter have indicated tgtat the present

trend of the Court is to center its Inquiry upon the

reasonableness and military necessity aspects of

such orders

This actually appears to De an extension o^ the

military duty test This is indicated by looking at

the two basic provisions of this test The ^irst is

that the order relate to a military duty In the apshy

plication of the Martin test it is generally true that

the order must relate to a military duty in some way

or it will not be made reasonably necessary by the needs

of the service The second portion of the military

duty test which requires that the officer be authorshy

ized under the circumstances to give the order may

certainly be said to be included within the Martin test

In the application of the military duty test

reasonableness and military necessity are certainly

to be considered However the reasonableness and

military necessity aspects of orders that restrict

personal rights will be examined much more closely by

the Court in the application of the Martin test It is

not likely that the Court would concern itself too

much with the overall military necessity of an order

to a private to assist in mowing the yard in the comshy

pany area On the other hand the military necessity

of an order to that private to report all of his pershy

sonal financial transactions to his commander will be

very closely examined

What is reasonable and necessary to the military

mission may very well be different in a critical overshy

seas area and an installation located within the conshy

tinental United States This was clearly demonstrated 112

by the Courts language in the Yunque-Burgos 113 11+

Martin and Wheeler cases It is equally clear

from the Courts language in these cases that the stanshy

dards of reasonableness and military necessity may be

different in combat operations during war when a comshy

mander may require broader authority than during normal

peace time conditions

112 See Chapter I p 7raquo supra113 See Chapter I p 6 supraII1 See Chapter II p Wi supra

With these general principles in mind let us now

turn to some current problesa areas and ascertain if

these principles furnish adequate guidance in these

particular areas

CHAPTER III

CURRENT PROBLEM AREAS

One of the most interesting aspects of a study

in the field of legality of orders is that there are

currently several problem areas -that should receive

consideration Inasmuch as the members of the Court

of Military Appeals disagree among themselves as to

the result to be obtained from applying a commonly 115

acceptable test to a specific order it is to be

expected that judge advocates will likewise disagree

as to the legality or illegality of certain orders

It is submitted however that the rationale of the

cases previously discussed do resolve many of these

questionable areas

Orders Relating To Privately Owned Vehicles

One of the more controversial areas relative to

this subject involves the limits upon a commanders

authority in the control of privately owned vehicles

In General

It has long been recognized that a post commander

may require the operator of a motor vehicle on the

military installation to carry insurance coverage on

115 United States v Wheeler supra

116 his vehicle However the opinion has been expressshyed that a post commander may not legally require that

liability insurance be carried on an automobile owned 117

and operated off post by a serviceman Further

that a post commander may not require a servicemember

to have liability insurance coverage off post-as a

condition precedent to the operation of his motor

l l 8vehicle on post

With regard to the ownership of vehicles the

opinion has been expressed that a post commander has

no authority to require personnel of his command to

obtain permission to purchase or own a motor vehicle 119or to interfere with the legitimate ownership thereof

A post commander may not restrict the use of privately 120

owned vehicles by military personnel off the post

Further a post commander may not legally require his

prior approval for the loan of a privately owned 121

vehicle The opinion has further been expressed

that a post commander may not require that all privately

116 JAG OCA-69 (May 18 1932)117 Ibid118 JAGA 195V6913 (Aug 5 1951raquo-) id 195^7^32

(Aug 27 1950 JAG 220^6 (Sept 9raquo 1931) 119 JAGA 19521133 (Feb if 1952) id 19536701

(Sept 1 1953) 120 JAGA 19525707 (July 3 1952)121 JAGA 19577^17 (Sept 20 1957)

owned motor vehicles operated by personnel of his comshy

mand within the geographical limits of the State in

which the post is located be registered with the 122

Provost Marshal of the post The Judge Advocate

General of the Air Force has stated that control of

private vehicles off base is a matter for civil 123

authorities

The operation of privately owned vehicles on post

is a different matter and the post commander may estab-12+

lish reasonable requirements in that regard In

addition to the requirement of insurance coverage

already mentioned he may specify safety requirements

gtmmai 126

125 and identification procedures The post commander

may require the registration of such vehicles 127 128

mechanical inspection and an operators license He may not condition the privilege of operating a

129 vehicle on post on the servicemembers rank or pay

122 JAGA 195290M (Nov 20 1952) id V)99amp2(June 11 195^)

123 1 Dig Ops JAG Post Bases etc sectsect 295(Oct 22 195D

12 - The legislative authority of a post commandshyer over the installation will not be discussed in deshytail A complete study in this particular field would be beyond the scope of this text

125 JAG 00^69raquo supra JAGA 19521133 supra126 JAGA 19525213 (June 19 1952)127 JAGA 1956821+ (Nov 9 1956)128 JAGA 19577^17 (Sept 20 1957)129 JAG 537^ (May 13 1933)

Legal questions concerning privately owned motor

vehicles continuously arise even at the present time

In an effort to curb the practice of selling automobiles

transported by service personnel from overseas posts

to the United States at Government expense a recent

proposal was made that prior to shipping an automobile

from a foreign post to the United States the service-

member be required to enter into an agreement to reimshy

burse the Government for the cost of transportation in

the event the vehicle was disposed of within one year

from the date of purchase The opinion was expressed

that such action would be legally objectionable in that

the requirement to be imposed bears no reasonable

relationship to the privilege granted and constitutes

an unjustifiable interference with the inherent legal 130

right to use and enjoy private property

Although most of the above opinions were expressed

prior to the development of the law in the field of

legality of orders by the Court of Military Appeals

it would appear that these opinions are generally in

conformance with the principles contained in the

opinions of the Court

130 JAGA 19605198 (Dec 16 I960) See alsoJAGA 19613^16 (Jan 6 1961) to same effect

Control Of Off-Post Traffic In

Overseas Commands

A very real problem area today is that of the

desire of commanders to control off-post traffic in

overseas commands It is a problem that has continued

to exist among all of the services for sometime now

and it is a problem for which no solution acceptable

to the commanders concerned seems to exist

The opinion was first expressed in 195+ that

commanders had no authority to regulate speed limits

of privately owned vehicles on the public highways of 132

Germany That opinion was reaffirmed in 1955 and bdquo 133

1957 The same opinion was also expressed with 13^

regard to France

The effect of these opinions was felt by some to

be undesirable in Germany and as a result the question

has been raised anew every few years One point often

mentioned in the requests for a reappraisal is that

many German highways have no speed limits It can

131 See Memorandum of Business and Minutes ofInterservice Legal Committee l8th Session May 22-2^- I96I pages 62-66

132 JAGA 195V8196 (Oct 11 195^)133 JAGA 19553672 (April 13 1955) id 19575798

(July 5 1957) id 195851^7 (July 10 19E) 131- JAGA 19^9288 (Nov l^ 19555

readily be imagined that the lack of speed limits might

encourage young and immature service personnel to drive

at an excessive speed with resulting personal injuries

or damages to property At the request of the intershy

ested overseas commanders the above opinions were

reconsidered in 1961 with specific emphasis placed on

the three following questions

1 May an individual be tried under OCMJfor the violation of a foreign traffic law

2 May an appropriate commander stationedin a foreign country promulgate traffic reshygulations (either by adoption of that countrys law or otherwise) the violation of which would constitute a triable offense under Article 92 UCMJ

3 May an appropriate commander stationedin a foreign country control the driving habits of the personnel of his command through such administrative actions as the suspension or revocation of a drivers license or vehicle registration

The above questions were answered in conformance

to the principles previously announced in earlier

opinions In answering the above questions recogshy

nition was given to the fact that the Commanding Genshy

eral United States Army Europe controls to some

extent the use of private vehicles by licensing both

the vehicles and the operators thereof in accordance

135 JAGA 1961A821 (Aug 18 1961)

with the existing agreement between^the allied powers

and Germany

In response to the first question posed above

the opinion noted that the violation of a foreign

traffic law is not per se an offense under the UCMJ

Further that should the conduct involved amount to

the violation of a specific article of the UCMJ such

as that proscribing drunken or reckless driving or

constitute disorders or neglects to the prejudice of

good order and discipline in the armed forces or conshy

duct of a nature to bring discredit upon the armed 136

forces the offense would be triable

With regard to the second question presented

the opinion concluded that the violation of such regshy

ulations would not constitute a triable offense under

Article 92 UCMJ Further that there is no justifishy

able distinction to be drawn between general regulations

which adopt foreign law and those which are original 137 with the commander concerned The opinion emphasized

136 Citing ACM 5636 Hughes 7 CMR 803 (1953)ACM S-550^ Wolverton 10 CMR 641 (1953) ACM 8289 Peterson 16 CMR 565 (195^) United States v Grosso 7 USCMA 566 23 CMR 30 (1957) JAGJ 19561730 (Feb 15 1956) JAGM 19568622 (Nov 23 1956) JAGJ 1957578 (Oct 2 1957) and JAGJ 19618323 (April 23 1961)

137 Citing JAGJ 1957578 supra and JAGA 19618323 supra

the rationale of the Court in the Martin Voorhees and

Milldebrandt eases in arriving at a conclusion concernshy

ing the instant problem

The opinion recognizes that a great deal of conshy

trol over privately owned vehicles has come about due

to the fact that the commander concerned has the reshy

sponsibility of licensing privately owned vehicles of

military personnel in Germanyraquo It concludes however

that the authority to license does not also carry with-

it the authority to regulate the speed of off-post

traffic in the absence of a grant of such authority by

the host country

As to the last question posed the opinion was

expressed that while the commander could not prescribe

speed limits as such he could prescribe reasonable

standards to be employed in determining whether an

individuals operators license should be withdrawn or

suspended and that such standards could properly inshy

clude operating a vehicle at such speed as to be dangershy

ous to the driver or the public under the circumstances

of the particular case

Now that we have a rather detailed opinion expressshy

ed on this matter let us examine this opinion in light

of the guidelines furnished by the Court of Military

Appeals in cases that have been before that Court -

Does the opinion expressed above accurately state the

present law in this field

Probably very few military lawyers would contend

that under normal circumstances a military commander

may lawfully regulate the speed of privately owned

vehicles driven by military personnel outside of milishy

tary reservations in the United States The generally

accepted position is that such regulation is within

the province of agencies other than the military Such

a result seems to not only embtidy good legal principles

but includes reasonableness as well The fact that

an individual is in the military service should certainshy

ly not mean that all of his conduct and personal affairs

both on and off-duty are subject to regulation by the

military

It might be well to consider first whether the

Court would apply the military duty test or the Martin

test to general orders controlling off-post traffic

It would seem that since this type of activity relates

more to the unofficial aspect of a servicemans life

that the Court would apply the Martin test A serviceshy

mans actions in taking his family for a drive on

Sunday afternoon hardly relates directly to the type

of military duty referred to in the military duty test

In the application of the Martin test one of the

first and most important elements that the Court will

examine is the military necessity for such off-post

control of traffic It would seem that this would he

an exceedingly difficult hurdle for the proponents of

such control to overcome There may very well be merit

in the argument that accidents involving military pershy

sonnel will be decreased if the commander is allowed

to impose speed limits where none now exist However

the same argument exists with relation to the control

of off-post traffic within the United States

In applying the specific language of the Martin

test we might ask whether this off-post control of

traffic is reasonably necessary to safeguard and proshy

tect the morale of the members of the command It

would seem exceedingly unlikely that the morale of our

personnel will suffer because speed limits are not

imposed This would bring us to the question of whether

138 These speed limits would of course not beapplicable to the German populace Therefore an argushyment could be made that a servicemember driving under a rigid speed limit might be placed in the dangerous position of slowing down faster moving vehicles opershyating under no such limit In other words he might be more likely to become involved in an accident by driving too slowly in fast moving traffic

such off-post control would safeguard and protect the

discipline of the members of the command This must

also be answered in the negative It would strain

reason and experience too far to say that discipline

will suffer because the individual serviceman is free

of military control when driving his privately owned

vehicle off the military installation In the event

the servicemember does commit an offense under the UCMJ

such as drunken or reckless driving he would be subject

to the disciplinary powers of the military

If the latter two questions are to be ansx ered in

the negative we must then consider whether such control

is reasonably necessary to safeguard and protect the

usefulness of the members of the command If some

servicemembers are spared injury or even death by

this control then certainly their usefulness has been

protected However the Court would obviously look to

something more than the protection of -a relatively

small number of servicemen If not then this argument

could also be used to justify such control within the

United States

Turning to the last requirement of the Martin test

we are faced with the question of whether such control

is directly connected with the maintenance of good

order in the services Reason again dictates that good

order in the services will not suffer as a result of

the lack of such control It would therefore appear

that the series of expressed opinions previously cited

correctly state the present law as to this factual

situation

It could well be however that exceptional cirshy

cumstances would provide a legal basis for the control

of off-post traffic Suppose for example that the

traffic conduct of United States service personnel had

become so notorious that the existing situation was

adversely affecting our good relations with Germany

Certainly the continunance of excellent relations

between this country and Germany are of the utmost

importance to our military mission in Europe during

these critical times It can be appreciated that such

a situation would well satisfy the reasonable and milishy

tary necessity requirements of the Martin test Under

these circumstances it could likewise be appreciated

that such control by the military would protect the

morale discipline and usefulness of our servicemen

If relations between our military members and the

German populace had deteriorated to this extent it

may readily be seen that drastic action by the military

commander would be necessary to prevent the type of

disorders involving United States service personnel

139 referred to in the Martin case As we have already

observed the cases clearly indicate that a commander

in a tense overseas area may very well have broader

authority in the issuance of orders restricting pershy

sonal rights than his counterpart in the United States

Another possible basis for this type of control

by the military might be found if it could be shown

that the accident rates on the highways were so unshy

usually high that the morale of servicemembers was

directly affected It might be shown that the actual

usefulness of a substantial number of servicemembers

was curtailed due to injuries received on these highshy

ways It may be appreciated that a marked deteriorashy

tion of morale or a substantial number of hospitalized

personnel could affect the Armys military mission

In the event such factors could be affirmatively

established it is submitted that the commander would

139 Note the language used by the Court in thatopinion as quoted in Chapter I p 6 supra

1^0 It is possible for strong arguments to be made as to such control of traffic on highways that have particular military significance such as the highway between West Germany and Berlin The existing military situation might necessitate direct control by the commander

have a perfectly legal basis for issuing orders conshy

trolling off-post traffic

It must be conceded however that the types of

factual situations referred to above are hardly likely

to be in existence in Germany at the present time

Another weakness in espousing this cause is that in the

event our service personnel were guilty of such notorishy

ous traffic conduct they would undoubtedly be subject

to disciplinary action under the IJCMJ without the

necessity for the type of off-post control desired by

the military commander in Europe

It is therefore submitted that in the absence

of an affirmative showing of factors not now known to

exist the cited opinions correctly state the law as

to all three of the presented questions

Civilian Clothing That May Be Worn

Off-Duty

The language of the Court in United States v 1 1

Yunque-Burgos indicates that an order requiring

military personnal in an overseas area to wear a milishy

tary uniform even while in an off-duty status may be

iM-l See Chapter I p 7 supra

entirely legal and proper But what of an order that

permits the wearing of civilian clothing off-duty but

requires that a coat and tie be worn with civilian

clothing when military personnal go into civilian comshy

munities within the overseas area

While no written opinions could be located on

this matter it would appear that this may be a real

problem area Such an order is not too likely to come

before the Court of Military Appeals as a violation

of suchorder would normally be tried by a summary or

special court-martial if tried at all However this

would certainly not justify the existence of such an

order in the event it fails to meet the tests for

legality as established by the Court

It seems logical that in testing the legality of

this type of order the Court would apply the Martin

test The appropriateness of off-duty civilian attire

would normally be more in the nature of a personal

matter than official military duty

The proponents of the legality of such an order

would have fewer legal arguments on their behalf than

the proponents of the control of off-post traffic It

could hardly be seriously contended that the coat and

tie requirement is reasonably necessary to safeguard

the morale discipline and usefulness of the members

of the command It would be even more difficult to

earnestly contend that such a requirement is directly

connected with the maintenance of good order in the

service

It can be seen where it would be advantageous to

the military for all American military personnel to

wear a coat and tie when off-post whether in an overshy

seas area or in the United States An excellent apshy

pearance by such personnel while in the civilian comshy

munity would very probably enhance the reputation of

the service

However this is not the test established for

the legality of an order And when the Court estabshy

lished test is applied to such an order it must fall

as being outside the province of the commander As

Chief Judge Quinn noted in the Milldebrandt case

Persons in the military service are neither puppets nor robots They are not subject to the willy-nilly push or pull of a capricious superior at least as far as trial and punishment by court-martial is concerned In that area they are human beings endowed with legal and personal rights which are not subject to military order Congress left no room for doubt about that It did not say that the violation of any order was punishable by court-martial but only that the violation of a lawful order was The legality of an order is not detershymined solely by its source Consideration

must also be given to Its content If an order imposes a limitation on a personal right it must appear that it is reasonshyably necessary to safeguard and protect the morale discipline and usefulness of the members of a command and raquo directly connected with the maintenance of good order in the services In cases of this kind we must look closely to the connection beshytween the personal act required by the order and the needs of the military service As the principal opinion points out the order here is completely unrelated to any requirement of the military service On that basis it is not a lawful order within the meaning of Article 92 of the Code

It is submitted that such an order would be illeshy

gal under the principles contained in the recent cases

pertaining to orders that restrict personal rights

There should be little doubt that the Court would

strike down any such attempt to so regulate the civilian l+2

attire of off-duty personnel

Order Imposing Curfew

General orders establishing a curfew are not unshy

known to the military Is it an unreasonable invasion

1^2 There may be a legitimate basis for the comshymander to impose reasonable requirements as to civilshyian dress in certain circumstances For example if the dress of our servicemembers was scandalous and ofshyfensive to the civilian populace then certainly the commander could correct this situation In any applishycation of the Martin test one becomes involved in a question of degree and reasonableness The needs of the service must be balanced against the restriction of an individuals personal right However the trend of the Court in this field should leave little doubt as to the illegality of the coat and tie requirement reshyferred to above

of a private right to require all military personnel

who are not on duty to be in their quarters by a certain

Curfews exist in civilian communities in the United

States However such a curfew is normally effective

only as to minors and not adults A serious legal

question might very well arise if a city ordnance were

enacted which imposed a midnight curfewon adults in

the absence of some extreme emergency situation How-be

ever such an ordnance is not likely toenacted as the

citys governing body must look forward to re-election

But what of such a curfew for adults in the military

during the present time Is this an unreasonable reshy

striction on a private right

Naturally it would be necessary to look at the

specific factual situation involved to answer this

question accurately In a combat area it seems obvious

without further discussion that a reasonable curfew

order would be legal

But what of an order at this time in Germany for

example that requires all military personnel to be in

their quarters prior to 2^00 hours Would such an

order be legal under the principles announced by the

Court of Military Appeals

The Court would certainly note the existing time

of world tension and the need for an alert combat force

The Court has never been reluctant to take notice of

such factors

The Court would undoubtably recognize the need

for this type of control over military personnel in

such a tense situation as presently exists in Germany

Such an order could very well be found to be reasonshy

ably necessary to the military mission there Existing

circumstances clearly reflect that the commander must

know of the whereabouts of his personnel and must be

able to alert his subordinates on very short notice

With the close proximity of a potential enemy such an

order could very well be said to be reasonably necessary

to safeguard and protect the morale discipline and

usefulness of the members of a command and directly

service

Order To Shave Beard Worn For Religious

Reasons

A question was recently presented as to whether

a servicemember who professed to be a member of the

1^3 United States v Yunque-Burgos supra

Moslem faith could legally be ordered to shave a beard

the servicemember contended was necessary to his religshy

ious faith The factual situation reflected that the

individual soldier who had been inducted into the

Army was convicted of the willful disobedience of his

commanding officers order to shave his beard The

soldier professed to be a member of the Moslem faith

and that his faith required that he wear the beard

There was evidence indicating that the wearing of a

beard by a Moslem is in commemoration of the Holy

Prophet and is a form of worship practiced by true

members of the Moslem faith There were also facts

which indicated that the particular soldier involved

wore his beard due to a personal desire on his part

rather than due to any religious duty

The opinion was expressed that as a matter of law

the order to shave the beard was legal The opinion

cited the military duty test for legality of orders as

the basis for the conclusion that the order was lawful

A Department of the Army Field Manual and regulation

were referred to as making a neat personal appearance l+5

of considerable military significance The opinion

lhkt JAGJ 19608230 (March 10 i960) lM Para 130c Dept of Army FM 21-10 May 6 1957

and para 5a Army~Regs No 600-10 Dec 19 1958

further noted that service boards of review had held

that a religious belief by an accused is not a defense

to a charge ofwillful disobedience of a superior l+6

officer

The opinion also made reference to an established

Department of the Army policy pertaining to the wearing lH-7

of long hair by members of the Sikh religion This

policy provides that a Sikh who is inducted into the

Army will not be required to cut his hair in violation

of his religious principles However if a Sikh volshy

untarily enlists in the Army he will be required to

conform to military practices relative to the wearing

of his hair even though such practice may violate his

religious beliefs

The opinion then concluded by adhering to the

decision that the order to shave- the beard was lawful

and indicating that the Sikh policy is somewhat analogshy

ous to the instant problem and might be used as a guide

for future treatment of this particular individual lU6 Citing ACM 9036 Morgan 17 CMR 5amp+ (15^)

wherein the accused refused to salute his superior and ACM 13^62 Cupp 2+ CMR 565 (1957) wherein the accused refused to salute his superior and to return to his place of duty See also para 169b MCM (195-1) to the same effect

1^7 The opinion indicates that this policy was provided for the guidance of Adjutant General personnel involved in recruiting and the procuring of personnel for the Army and has apparently not been disseminated to the field

The drafters of the above opinion might very well

have applied the Martin test to measure the legality of

this particular order That particular test would seem

more in line with the tests applied in previous cases

decided by the Court of Military Appeals than the

Manual test since this order goes substantially-to a

personal right of the servideman However- the result

should be the same in either event The personal apshy

pearance on duty of military personnel is undoubtably

within the category of orders necessary for the needs

of the military service It is obvious that a milishy

tary unit in which the commander had no control over

the appearance of his subordinates would lack the neshy

cessary discipline to accomplish military missions

In this particular area the Court would have little

difficulty in concluding that the order was reasonably

necessary to protect the morale discipline and usefulshy

ness of the members of the command and directly conshy

nected with the maintenance of good order in the

service

1^8 See also JAGA 19603793 (March 22 I960) wherein the opinion was expressed that an order to a former professional writer on a short period of active duty to shave his beard is a lawful order JAGA 1960 i+OlB and JAGJ 196O823O concurred with a proposed Department of the Army policy relative to the wearing of beards and mustaches to the effect that

lM-8 (Continued) a Mustaches may be worn provided that they are kept

short and neatly trimmed No e-ceentricity in themanner of wearing them shall be permitted

b A man who is drafted-and whase religious beliefsinclude the wearing of a beard will be grantedauthority to wear a beard while on extended activeduty

c Persons in the reserve components not on activeduty will be authorized to wear beards while pershyforming military duties when such beard is basedon religious or other cogent reasons

The proposed policy apparently resulted from the two opinions previously noted relative to beards and the policy relative to the wearing of hair by members of the Sikh religion

CHAPTER IV

TRIAL AND APPELLATE PROBLEMS

Submitting The Issue To The Court Members

From a military lawyers point of view one of the

most important parts of any court-martial is the law

officers instructions to the members In our court-

martial system it is certainly an area of great concern

to the law officer Not only must he furnish legal

guidance to the court members but the language he uses

must be very carefully chosen to stand up under the

automatic review of all cases in which he participatesraquo

Let us consider whether the recent cases in the field

of legality of orders have had any impact in the inshy

structional area

The initial point of inquiry into this matter l+9

would logically be The Law Officers Handbook It

will be noted that the sample instructions contained

In Appendix II of this handbook-relative to the offense

of willful disobedience of orders refer to the military 150

duty test for determining the legality orders As

to the particular order Involved in the sample instrucshy

tions an order to the accused to make up his bunk

1^9 U S Dept of Army Pamphlet No 27-9 Milishytary Justice HandbookmdashThe Law Officer (1958)

150 Id at 132

the language contained in the sample instructions

should be sufficient guidance for the court

But what of an order that restricts a personal

right of the accused such as the orders previously disshy

cussed in Chapter II supra Would a law officer

properly instruct the court members as to the law conshy

cerning the legality of this type of order by reciting

the military duty test to them

We have seen that the Court of Military Appeals

has held that a different legal test is to be applied

in cases involving such orders The order must be

reasonably necessary to safeguard and protect the morale

discipline and usefulness of the members of a command

and must be directly connected with the maintenance of

good order in the service In addition the order

must have been required by the needs of the military

service

Inasmuch as the Court has established these factors

as constituting the true test of the legality of such

an order the court members should receive an instruct

tion covering these factors Such an instruction will

of course vary with each factual situation presented

and type of order involved

It will be observed that in Appendix I of the law

officer pamphlet dealing with the elements of the ofshy

fenses under-Articles 90 and91 the reader is also

referred to the military duty test as furnishing the 151

proper test of legality Therefore this portion

of the pamphlet is equally out of date with the porr_

tion previously referred to in Appendix II insofar

as orders restricting personal rights are concerned

In addition the proposed instructions relative to the

elements under Article 92(1) refer to paragraph 171a 12

for the proper definition of a lawful general order

It will be recalled that the test established there

was that a general order or regulation is lawful if it

is not contrary to or forbidden by the Constitution

the provisions of Act of Congress or the lawful order

of a superior If there were any beliefs that this

test remained In effect as to general orders that reshy

strict personal rights subsequent to the Martin case

the matter should have been settled completely by

United States v Fation supra wherein the Court stated

151 U S Dept of Army Pamphlet No 27-9 Milishytary Justice HandbookmdashThe Law Officer (1958) at p bk

152 Id at 85

General regulations which do not offend against the Constitution an act of Congress or the lawful order of a superior are lawful if reasonably necessary to safeguard and proshytect the moraleraquo discipline and usefulness of tliemembers of a command and directly connected with the maintenance of gopd order in the servlcesT ^Emphasis suppliedA

It may therefore be seen that regardless of the punishy

tive article under which the offense is alleged the

test for legality is the same when the order restricts

a personal right

It is certainly to be recommended that in cases

in which the legality of an order affecting a personal

right is in issue the law officer instruct the court

members in terms of the now established law in this

area Such instructions must necessarily vary with

the factual situation involved To be properly inshy

structed in such cases the court members should cershy

tainly not be automatically instructed in terms of the

military duty test as suggested by the law officer

handbook

Another instructional matter that the law officer

should consider is whether his instructions will refer

to a presumption of legality in view of the disfavor

expressed by the Court of Military Appeals with refershy

ence to use of the terms presume or presumption

The Manual provides that an order requiring the

performance of a military duty or act is presumed to

be lawful and is disobeyed at the peril of the sub-153

ordinate This provision was given early recognishy

tion by the Court In the case of United States v

Trani the Court stated It is a familiar and long-standing

principle of military law that the command of a superior officer is clothed with a preshysumption of legality and that the burden of establishing the converse devolves upon the defense Certainly the presumption of legality of orders emanating from a supeshyrior officer is and of necessity must be a strong one requiring for an adverse detershymination a clear showing of unlawfulness Emphasis supplied^ Even after the Courts announced suspicion of

the use of the terms presume and presumption in 155

Instructions in the case of United States v Ball

these terms have continuously been used in cases Inshy

volving the legality of orders In the case of United 156

States v Coombs the Court had before It a case in

which the accused had pleaded guilty to a specification

alleging a failure to obey a travel order Appellate

defense counsel attacked the specification on the

153 Para 169b MCM (195D19 1 USCMA 293 3 CMR 27 (1952) 155 8 USCMA 25 23 CMR 2^9 (1957)156 8 USCMA 7^9 25 CMR 253 (1958)

grounds that it did not allege an offense The Court

noted the well recognized presumption of the legality

of an order by a superior to a subordinate in finding

that the specification did allege an offense In the 157

1961 case of United States v Wilson the Court noted

that all appellate counsel were in agreement that every

military order is presumed legal 158

It will be noted that in the law officer handbook

the suggested instructions in Appendix I relative to

instructing on the elements of the offenses for Artishy

cles 90 91 and 92 make no mention of a presumption

of legality of orders However in the sample instrucshy

tions contained in Appendix II of the handbook the 159

sample instructions relative to willful disobedience

offenses contain the following language

An order requiring the performance of a military duty or act Is presumed to be lawful unless the contrary appears

It Is difficult to see where this presumption Is

really any more than a justifiable inference The

Manual provides that generally the word presumej as

used In the Manual means no more than justifiably infer

157 12 USCMA 165 30 CMR 165 (1961)158 U S Dept of Army Pamphlet No 27-9 Milishy

tary Justice HandbookmdashThe Law Officer (1958) at pp 84-86

159 Id at 132160 Para 138a MCM (195D

I n United States v Ball supra the Court in disshy

cussing the presumption that a person must have intended

the natural and probable consequences of his acts and

the presumption arising from possession of recently

stolen property stated

Presumption1 is the slipperiest member of the family of legal termsraquo Insofar as the term presumption refers to justifiable inshyferences the court-martial may draw from the facts it is quite properly before the triers of fact When the term is used to describe presumptions of law it is not properly before the members of the court-martial except in instructing the court that they are bound by the legal conclusion to be drawn from facts proved Of course this last mentioned type is not a true presumption but is a rule of law grown out of an earlier presumption In the future law officers would be well advised to utilize the correct usagemdashjustishyfiable inferencesmdashrather than the ambiguous usagemdashpresumptionsmdashwhich as In this case required a detailed definition to save error The use of the phrase the law presumes is of course especially bad In this connection and Is incorrect The use Implies a presumpshytion of law which is not the type of presumpshytion involved in this case

A review of cases involving legality of orders

decided by the Court since the Ball case fails to reshy

veal that the Court has ever discussed this aspect of

the law officers instructions However If it is conshy

ceded that the presumption of legality of orders is no

more than a justifiable Inference then the law officer

should not use the language quoted from the law officer

handbook and should phrase his instructions in this

regard in terms of a justifiable inference This would

appear to be the proper course of action to follow as

there is no basis in the cases decided by the Court for

concluding that this presumption is any more than a

justifiable inference

Once an affirmative defense is placed in issue

by the evidence the law officer must instruct on the

defense sua sponte

The test as to whether such an affirmative defense

has actually been placed in issue now appears to be

whether there is any foundation in the evidence for

such a defense theory If so instructions must be 162given sua sponte

As a result the Court has found error due to

the law officers failure to instruct sua sponte on 163

the defenses of physical inability financial in-16raquo+ 165

ability mistake lack of knowledge that the per-166

son issuing the order was a military superior and 167

intoxication

161 United States v Ginn 1 USCMA ^53 h CMR U5(1953)

162 United States v Imie 7 USCMA 5l^ 22 CMR 30+

(1957) 163 United States v Helms supra164- United States v Pinkston supra 165 United States v Holder 7 USCMA 213raquo 22 CMR 3 (1956)166 United States v Simmons 1 USCMA 691 5 CMR 119 (1952)167bull Ibid

As in other offenses mistake may be a valid

defense to a charge involving disobedience of orders

As a general rule for mistake to be a defense in a

general intent type of offense the mistake must be

predicated on an honest and reasonable belief of the

accused As to offenses involving a specific intent

the cases generally hold that an honest mistake is a

defense if it negates the intent required to establish 168

an element of the offense There are certain ex-169

ceptions to these general rules

As to the offense of -willful disobedience of an

order the accused must have had knowledge that he had

received an order from his military superior and then

have willfully disobeyed the order An honest mistake

in this connection on the part of the accused should

therefore constitute a valid defense As to the ofshy

fense of failure to obey a lawful order it must be

shown that the accused knew of the order and that he

failed to obey it A mistake as to the accuseds

knowledge of the order need only be honest As to the

accuseds failure to obey the order the mistake may

have to be both honest and reasonable since the failure

168 United States v Holder supra169 United States v Connell 7 USCMA 228 22 CMR

18 (1956)

to obey could be based on simple negligence 170

In United States v Jones - the accused was conshy

victed by special court-martial of the offense of willshy

ful disobedience The convening authority approved

only a failure to obey under Article 92 of the UCMJ

The Judge Advocate General copyf the Air Force certified

to the Court the question of whether mistake may be a

defense to the offense of disobedience of orders

Chief Judge Quinn did not specifically rule on this

question in his opinion and found that the issue of

mistake was-not reasonably raised by the evidence

Judge Latimer prepared a concurring opinion in whicr

he concluded that mistake could be a defense to failure

to obey offenses and that the mistake would have to be

both honest and reasonable Judge Ferguson did not

participate in the opinion

In cases involving the offense of willful disshy

obedience it has been observed that the accused must

have had knowledge that the person issuing the order

was his military superior In United States v Sim-171

mons the Court held that the failure of the law officer to so instruct where an issue had been raised

170 7 USCMA 83 21 CME 209 (1956)171 1 USCMA 691 5 CMR 119 (1952)

as to such knowledge constituted error In the Manual 172

discussion of willful disobedience offenses it will

be noted that such knowledge is not listed as an eleshy

ment of the offense In the Simmons case the Court

did not specifically hold that knowledge was an essenshy

tial element of the offense The Court stated It follows that regardless of whether

we view knowledge as an element of the offense or defense the court-martial was not properly instructed

The Court then suggested that the Manual be corrected

to show that in willful disobedience cases knowledge

is an element which must be included in the proof

There should be no serious instructional problems

when the accused attempts to explain his disobedience

of orders by contending that to obey such orders would

violate his religious scruples The Manual provides

that the fact that obedience to a command involves a

violation of the religious scruples of an accused is 173 not a defense Various boards of review have af-

17^ firmed this provision The matter of religious

172 Para 169b MCM (195D173 Ppoundra 169b MCM (195D17^ ACM 13^62 CUPPlaquo 2h CMR 565 (1957) which inshy

volved an order to salute and return to the accuseds place of duty ACM 9036 Morgan 17 CMR 58+ (195t+) which involved an order to salute

scruples was previously discussed with relation to an 175

order to shave a heard worn for religious reasons

Raising The Defense Of Illegality

In the great majority of cases examined the deshy

fense of illegality of the orders was raised by the

defense during the defense portion of the court-martial

In a general court-martial the legally qualified counsel

for the accused is hardly likely to overlook the poten-176

tial defense of illegality of an order But suppose

the record fails to show that legality of the order was

placed in Issue at the trial level Is the accused

thereby precluded from raising the issue for the first

time on appeal

There are several different aspects of this probshy

lem which should be discussed separately Let us

assume in the first instance that the particular order

as set forth in the specification appears to be legal

In other words there Is no indication on the face of

the order that it Is palpably Illegal Let us further

175 See Chapter III pp 100-03176 It should be noted that the legality of an

order may be placed In Issue during the trial by evishydence other than that adduced by the defense Normally an order from a superior relating to military duty Is presumed to be lawful The burden is on the accused to establish illegality For this purpose the defense may rely on the prosecution evidence to establish illegality United States v Bayhand 6 USCMA 762 21 CMR Bk (1956)

assume that the evidence contained in the record does

not indicate that legality of the order was placed in

issue at the trial level

An Army Board of Review considered this type of 177 situation in United States v Wilson In that case

the accused had been found guilty of the disobedience

of an order to refrain from cashing checks without first

presenting evidence to his headquarters that he had

sufficient funds in the bank to cover payment of his

checks At the trial of the case no objection was

raised as to the validity of the order and no evidence

was presented on that question In discussing the

failure to contest this issue at the trial level the

Army Board of Review stated

If the accused or his counsel had any real doubt as to the validity of the order the question should have been raised at the trial where evidence as to the basis for the order the motive of Colonel Kleinman in giving it and all the circumstances could have been presented for the determination of that matter by the court-martial Appellate courts will not generally consider such objections raised for the first time on appeal

The board however then discussed the legality of the

order in question and found it to be a legal order

177 CM 351835 CMR 311 (1952)

This precise question involving a questioned order

has apparently never been before the Court of Military

Appeals Howeverj the Court has considered situations

that are somewhat analogousraquo

There are a number of such cases dealing with the

question of whether the failure to raise an issue relashy

tive to various evidentiary matters during the trial

precludes raising such an Issue for the first time on

appeal The general rule as to this problem was an-178

nounced by the Court in United States vraquo Masusock

This case held that the Court would not normally conshy

sider such matters when alleged as error for the first

time on appeal The Court noted that an exception to

this rule would be made where the alleged errqr would

result in a manifest miscarriage of justice or would

otherwise seriously affect the fairness integrity or

public reputation of judicial proceedings The Court

also limited the application of the general rule to

cases in which the accused is represented by legally

qualified counsel This general rule is also the

178 1 USCMA 32 1 CMR 32 (195D

generally followed rule in civilian courts The

obvious reason for the rule is that the defense should

be required to raise defense issues at the trial level

where opposing counsel may present the other side of

the issue and the matter may be resolved at that time

Once the trial is completed it may be exceedingly

difficult for an appellate court to judiciously detershy

mine such an issue However it will often be noted

that when an appellate court invokes this rule the

court will then proceed to find that the issue would

have been decided adversely to the accused in any event

Thus in the Masuspck case the Court found that the

appellate objection to the documentary evidence would

not have been sustained by the Court This general 180

rule has been reaffirmed many times by the Court 179 Larrison v United States 2+ F2d 82 87 (7th

Cir 1928) Jenkins v United States 58 F2d 556 557 (M-th Cir 1932) Stephenson v State 119 Ohio 3^9 l6+ HE 359 362 (1928) State v Bohn 67 Utah 362 2+8 Pac 119 121 (1926) 2h CJS sec lb -2 pp 693-9+raquo

180 See United States v Dupree 1 USCMA 665 5CMR 93 (1952) relative to raising an issue of illegal search for the first time on appeal United States v Fisher h USCMA 152 15 CMR 152 (1950 and United States v Henny h USCMA 158 15 CMR 158 (1950 relashytive to raising the issue of an involuntary confession United States v Mitchell 7 USCMA 238 22 CMR 28 (195deg) as to a variance between the pleadings and the proof and ACM 15690 Morris 27 CMR 965 (1952) petition for review denied 27 CMR 512 (1952) relative to considershying a new issue when the accused claims inadequate reshypresentation at his trial

The Court noted another exception to this rule in the iBl

case of United States v Stringer when it held that

the Court would consider an error raised for the first

time on appeal where the error is apparent on the face

of the record and sufficiently prejudicial as to preshy

clude application of the doctrine of harmless error

Closely connected to the above principle is the

general rule that when the defense proceeds on one

theory at the trial level such theory may not be abanshy

doned and a completely new theory adopted on appeal

This principle was announced by the Court in United

States v Bouie The Gourt also noted in that case

that this principle is not applied without exception

and that an exception does exist where the alleged

error would result in a miscarriage of justice or would

seriously affect the fairness integrity or public-

reputation of judicial proceedings

An interesting variation of this problem arose in 183

United States v Woolbright There the accused and

several other prisoners who were working on a golf

course being constructed at Fort Leonard Wood Missouri

refused to obey orders from their guard supervisor to

181 k USCMA h$+ 16 CMR 68 (195^) 182 9 USCMA 228 26 CMR 8 (1958) 183 12 USCMA if50 31 CMR 36 (1961)

return to work and were otherwise generally unruly

The accused was subsequently convicted of escape from

confinement and mutiny resulting from his conduct arisshy

ing out of this incident

The Court ofMilitary Appeals found that the

accused had not committed mutiny but that the lesser

included offense of willful disobedience of the guards

order to return to work could be affirmed Appellate

defense counsel petitioned for a new trial due to newly

discovered evidence that the project upon which the

accused had been assigned to work was the property of

a private association the Fort Leonard Wood Golf Club

Thus it may be readily observed that a substantial

argument could be made that the order should be held

illegal since the work was to benefit only a private

association It can be seen that the principles an-

nounced in the cases previously discussed would

provide the defense with some strong arguments relative

to the possible illegality of thisorder

In disposing of this matter the Court stated

We need not reach the issue which this petition presents It is clear that each item of evidence presented in support of the allegation was in existence prior to the trial

iQh See Chapter II supra

and was easily available to defense counsel Yet the entire record is devoid of any proof concerning the ownership of the golf course or the nature of the Fort Leonard Wood Golf Club bull In order -to warrant granting a petition for new trial it must appear that the newly discovered matters would not have been disshyclosed by the exercise of due diligence at or before the original trial Here we are not offered a shred of evidence which would not have been revealed by the most casual inquiry prior to accuseds trial nor is there any explanation concerning the lack of such an investigation Thus under the circumstances we must hold that petitioner has failed to show the exercise of due diligence and is therefore not entitled to another trial1

It is therefore submitted that the board of review

decision In the Wilson case does represent the present

law In this area and that the defense would be well

advised under such circumstances to assure that the

question of legality of an order apparently valid on

Its face Is raised at the trial level The analogous

situations described above that have actually been

185 See also United States v FIdler 12 USCMA 1+51+31 CMR 0 (i960) a companion case to the Wooibright case In this case the accused had been convicted of disobedience of orders to return to work on the golf course The Court granted review on the Issue of the legality of the orders The Court noted that the reshycord of trial was devoid of any evidence that the golf course was privately owned or operated and that the record indicated only that the course appears to be located on a military reservation The Court found that on the basis of the record it could not hold that the orders were unlawful The Court refused to entershytain a motion for a new trial on the same grounds used in the Woolbright case

before the Court indicate that the Court would apply

the rule that such an-issue must normally be raised at

the trial level and may not be raised for the first

time on appeal in the absence of the exceptions preshy

viously mentioned

It should be noted that failure to attack the

specifications as not stating an offense at the trial

level does not preclude such an attack for the first 186

time on appeal This rule is stated in the Manual

and-has been adhered to consistently by the Court of 187

Military Appeals In United States v Reams the

Court gave notice however that defense counsel had best

make such an attack at the trial level -The factual

situation involved in the Reams case illustrates the

danger to the defense in waiting until the case is

heard on appeal before contending that the specificashy

tion does not allege an offense

In that case the accused had pleaded guilty to

two-offenses of making false official statements and

certain other offenses The false official statements

were made to a legal officer and the accuseds comshy

manding officer concerning the accuseds personal

indebtedness Appeallate defense counsel attacked

186 Para 67a MCM (195D187 9 USCMA pound96 26 C M h6 (1958)

these specifications as not stating offenses contendshy

ing that the accused was under no duty to make true

statements to the officers involved about his payment

of personal debts The Court noted that under the

rationale of the Milldebrandt case there are circumshy

stances under which military superiors have no authorshy

ity to scrutinize the personal financial affairs of

those in their command However the Court found that

the proper test to be applied to the specifications

When the pleadings have not been attacked prior to findings and sentence it is enough to withstand a broadside charge that they do not state an offense if the necessary facts appear in any form or by fair construction can be fgund within the terms of the specificationloo

The Court noted that pursuant to the rationale 189

announced in United States v Kirksey commanders may

have a legitimate interest in the financial irresponsishy

bility of members of the command The Court found that

by the accuseds plea of guilty he had admitted his

false statements were made to his superiors who were

inquiring into a matter of official interest and that

the accused thereby chose not to put the Government to

188 Id a t 699 26 cm a t ^79189 6DSCMA 556 20 CMR 272 (1955)

its proof that the designated officers were acting

officially in questioning him The Court held that

since the fact that the officers involved -were conductshy

ing their interrogation as an official matter went unshy

challenged the accuseds false statements were a

perversion of a Governmental function regardless of

the importance to that function of the matters with

which the statements were concerned The Court then

found that the accuseds statements could be fairly

construed as having been officially made

It should be noted that Judge Ferguson dissented

on this point He expressed his opinion that the cirshy

cumstances described in the specifications substanshy

tially approximated those held by the Court not to be

false official statements in United States v Washing-190

ton He concluded that since the accuseds actions

did not constitute an offense the plea of guilty could

not convert those actions into an offense It should

be observed however that Judge Ferguson did not take

exception to the general test to be applied to the suffishy

ciency of a specification attacked for the first time on

appeal but only with the interpretation of the allegashy

tions of the specification admitted to by the accuseds

190 9 USCMA 131 25 CMR 393 (1958)

plea Judge Ferguson was the author of the opinion in 191

United States v Coombs wherein the Court applied

the previously stated general test for the sufficiency

of a specification attacked for the first time on

appeal

The question might be presented as to whether the

defense may properly direct to the law officer a motion

to dismiss based on the alleged illegality of the order

prior to the receipt of evidence In other words the

defense counsel might contend that the specification

alone shows the illegality of the order and that the

specification therefore does not properly allege an

offense In the event the specification does not acshy

tually allege an offense such a motion is proper and 193

should be granted In this connection the question

might arise as to how far the law offieer should go in

allowing evidence to be presented in an out of court

hearing to establish whether under the factual circum-19^

stances the order was illegal 191 8 USCMA 7^9 25 CMR 253 (1958)192 See also United States v Petree 8 USCMA 9

23 CMR 233 (1957) United States v Fout 3 USCMA 565 13 CMR 121 (1953) and United States v Sell 3 USCMA 202 11 CMR 202 (1953) for cases applying the same general test for the sufficiency of a specification attacked for the first time on appeal

193 Para 67a MCM (195D19^ In United States v Cates 9 USCMA hQO 26 CMR

260 (1958) the Court held that an accused had a right to an out of court hearing on the admissibility of his pretrial statement

The Manual provides that if the motion raises a

contested issue of fact which should properly be conshy

sidered by the court in connection With its determinashy

tion of the accuseds guilt or innocence the introducshy

tion of evidence thereon may be deferred until evidence 195

on the general issue is received The Court of

Military Appeals indicated in an early case that the

law officer should follow this course of action when

confronted by such a situation In United States v

Richardson the accused wa6 charged with taking imshy

moral and improper liberties with a female under 16

years of age Prior to pleading to these offenses the

defense directed a motion to the law officer to dismiss

the specifications pertaining thereto contending that

the accused and the girl involved were husband and wife

by virtue of a common law marriage entered into in anshy

other state A hearing was held outside the presence

of the court at which both the accused and the girl

testified as to the circumstances of the purported comshy

mon law marriage The law officer then reopened the

court and denied the motion The question of the proshy

priety of the law officers action was certified to

195 Para 67e MCM (195D196 1 USCMA F58 h CMR 150 (1952)

the Court of Military Appeals by The Judge Advocate

General

The Court found that the law officers actions

relative to this motion were in error because the law

officers ruling required a finding on a critical issue

of fact which was one of the major portions of the deshy

fense and in legal effect was a motion for a finding

of not guilty The Court noted that the appropriate

time to make this type of motion is after the taking

of evidence has been completed The relationship of

the parties determined the material part of the offense

and as such had to be considered by the court in arshy

riving at a finding The Court noted that had the law

officer determined that a valid maiwiage existed beshy

tween the parties he would have invaded the province

of the court members and would have by his action

precluded the members from objecting to his ruling as

is their privilege with-respect to a motion for a findshy

ing of not guilty Such action would be prohibited by

the UCMJ as upon objection by any member the court

is required to vote on the correctness of the law 197

officers ruling

197 Article 51(b) UCMJ

It may be said then that as a general rule the finally

law officer may not ruleonsuch a motion to dismiss

when the ruling necessitates a determination of a disshy

puted question of fact regarding a matter which would

bar or be a complete defense to the prosecution without

submitting this issue to the court A matter of that

kind is to be considered by the court in connection

with its determination of the accuseds guilt or 198

innocence

If the motion goes only to a question of law as

distinguished from a question of fact the law officer

may properly rule upon the motion without making his

19S This principle was utilized by the Court in United States v Ornelas 2 USCMA 96 6 CMP 96 (1952) The accused was tried for desertion The defense made a motion to dismiss for lack of jurisdiction based on the accuseds testimony that he had never completed the induction ceremony Other evidence indicated that the accused had been lawfully inducted The law ofshyficer ruled on the motion as a question of law and reshyfused to submit the issue to the court members The Court of Military Appeals found that a disputed quesshytion of fact existed as to whether the accused was actually inducted into the Army and that the law ofshyficer erred in not submitting the issue to the court under appropriate instructions In the subsequent case of United States v Berry 6USCMA 609 20 CMR 325 (1956) the Court again by way of dicta emphasized the above principles In United States v McNeill 2 USCMA 383 9 CMR 13 (1953) no issue of fact arose concerning whether the accused had been lawfully inshyducted The Court ruled that the issue of the accuseds induction was therefore a question of law for the law officers determination alone

ruling subject to review by the court members A motion

to dismiss based on the illegality of an order may inshy

volve a question of law or a question of fact 199

In United States v Buttrick an issue arose as

to whether an order to salute was given for a legitishy

mate military reason or was given solely with the

anticipation that the accused would refuse to obey and

subject himself to prosecution The Air Force Board

of Review found that no factual issue as to the lawfulshy

ness of the order was raised and that the legality of

the order was therefore solely a question of Ijaw A

similar order was involved in the case of United States

vlaquo Morgan However the evidence here was conflictshy

ing as to the reason for giving the accused the order

to salute The board of review found that the order

was not palpably illegal as a matter of law The board

further found that the conflicting evidence as to the

reason such an order was given the accused raised a

factual issue as to the legality of the -order that

should have been determined by the court members

It is therefore observed that a motion to dismiss

based upon the illegality of an order may involve only

199 ACM 9652 18 CMR 622 (195^)bull200 ACM 9036 17 GMR 58^ (1950

a question of law to be decided by the law officer

alone On the other hand the legality of the disputed

order may turn upon a disputed question of fact that 201

must be ultimately decided by the court members

Responsibility Of The Trial Counsel

It might be well to consider whether any new reshy

sponsibility has been placed on the trial counsel by

the recent trend in cases involving the legality of

orders that affect personal rights It has been obshy

served that the Martin test requires both reasonableshy

ness and military necessity It is submitted that

the appellate determination of the- legality of an order

may very well turn upon whether the prosecution has

established by sufficient evidence that the questioned

order was reasonable and necessary under the existing

circumstances

To use the Martin case as an example the Court

noted that at the time of the order limiting the acshy

cuseds disposition of personal property his ship was

in a foreign port where American cigarettes were at a 202

premium and where black markets flourish The opinion does not indicate whether these facts were

201 In this same connection see ACM 12539 Kapla22 CMR 825 (1956)

202 See Chapter I p 6 supra

contained in the record of trial or whether the Court

took notice of this existing situation in the absence

of such evidence in the record It would certainly

appear that the trial counsel would be well advised to

present such evidence to the court-martial While the

local court members may be well aware of exceptional

local circumstances such evidence should be available

for the consideration of appellate courtsraquo

A good example of a case in which such evidence

might be essential would be a case arising from the

violation of an order imposing off-post speed limits 203

in overseas commandsraquo Let us assume that the approshy

priate commander in an overseas area determined that

such an order was both reasonable and a military necesshy

sity due to circumstances existing within his command

It would certainly be essential that the prosecution

present evidence of these exceptional circumstances for

the consideration of the court members and subsequent

appellate review In the absence of convincing evidence

in this regard it is submitted that such an order would

be almost certain to be held illegal upon review

203 See Chapter III pp 86-95 supra

It has been previously mentioned that the Manual

provides that an orderbullrequiring the performance of a 20+

military duty or act is presumed to be lawful

While this so-called presumption might more properly

be called a justifiable inference it may often be of

assistance in convincing an appellate court that a 205

somewhat questionable order was in fact legal However this inference certainly has its limitations

206 as does any inference and may be overcome by even

the prosecution evidence

The Court of Military Appeals indicated in the

Milldebrandt case that the trial counsel should introshy

duce evidence supporting the legality of the questioned

order The Court there stated In this instance the evidence found

in the record is of no assistance in detershymining the legality or illegality of the order The nature of the information ordered to be furnished is not shown and for aught that appears the accused might have been required to give a detailed stateshyment of every financial transaction engaged in by him while off duty It should be apparent that if the order was as broad as

201)- P a r a 169b MCM (1951) 205 United S t a t e s v Coombs 8 USCMA 7hy 25 CMR

253 (1958) 206 See U S Dep t of Army Pamphlet No 27-172

M i l i t a r y J u s t i c e mdash E v i d e n c e Chapter I I I pp 30 -33 (1961)

207 United S t a t e s v Bayhand 6 USCMA 762 21 CMR8 (1956)

that the accused might be prosecuted for failure to disclose information of a confishydential or incriminating nature

It is submitted that the burden on the trial counshy

sel in this regard may very well be greater in cases

involving orders that restrict personal rights As to

the usual order pertaining to a strictly military duty

the Court would probably not need a great abundance of

background information by which the order could be

legally tested However in the event the order reshy

stricts a personal right then the factors of military

necessity and reasonableness enter much more closely

into the Courts consideration It would therefore be

advisable for the trial counsel to assure that the

record of trial contains sufficient evidence of the

local circumstances so that the Court may properly

judge the reasonableness of the order under these cirshy

cumstances and the particular need of the service that

required issuance of the order

CHAPTER V

SUMMARY AND CONCLUSIONS

Every person who has any degree of familiarity

with military matters knows that the obedience of

orders is one of the most essential requirements in

either military trainingor combat operations Exshy

perience has shown the necessity for orders that go

beyond what is ordinarily thought of as a service-

members military duties and affect that individuals

personal rightsraquo If an individuals personal rights

as distinguished from his official duties are to be

restricted it is necessary that reasonable limitations

be placed on a commanders authority in this regard

An individual in the service should be allowed as

much freedom in his personal affairs as the needs of

the military permit

The principle of military law which provides that

only lawful orders must be obeyed assures-that unreashy

sonable restrictions on a servicemembers personal

rights will not be allowed The question of whether

such a restriction is in fact reasonable or unreasonshy

able is a question upon which military lawyers as

well as individual members of-the Court of Military

Appeals may be expected to disagree

The military duty test for legality of orders proshy

vides sufficient guidance for measuring the legality

of orders that relate to what we ordinarily think of as

official duty matters The Court of Military Appeals

has indicated that this test is the proper standard to

apply to such orders However this test was not deshy

signed for use in measuring the legality of orders that

restrict an individuals personal rights The military

duty test would furnish very little practical guidance

as to such orders

A survey of military cases reflects that the

Court has adopted a different test to he used in meashy

suring the legality of this type of order This has

been referred to as the Martin test This test could

be criticized as being too broad in scope However a

test that is more narrow in scope would not be suffishy

cient to provide guidelines for the varying factual

situations that are likely to arise While this test

may not be perfect it would be difficult to provide a

legal test that would provide more definite guidelines

for the many types of orders to be evaluated

Analysis of the two tests reveals that they are

not as different as might first appear The most

essential criteria of the Martin test is really the

reasonableness and military necessity of the order

The same elements enter into the military duty test

even though they are not specifically mentioned in the

language of the test However as td orders that reshy

strict personal rights the Court will look much more

closely into the reasonableness of the order and the

need of the service that prompted issuance of the order

^copy Martin test is actually an extension of the military

duty test and imposes more rigid requirements when an

order restricts an individuals personal rights

It must be concluded that neither the military

duty test nor the Martin test provide a completely

satisfactory guide when standing alone There is no

magic formula that will accomplish this purpose The

law as developed in the cases decided by the Court

must implement these broad tests to determine whether

a questioned order is legal

In certain areas involving the legality of orders

the law has been fairly well settled by decisions of

the Court In other areas considerable litigation may

be expected in the future

The cases have demonstrated that the authority of

a commander in an overseas area where a tense military

situation is in existence has broader authority as to

the orders he may lawfully issue than an equivalent

commander in a less tense area However the cases

have also indicated that a hare assertion py a comshy

mander that an order was necessary to achieve a high

status of unit combat readiness will not validate an

illegal order The Court will closely examine the

existing circumstances to determine the actual military

necessity for orders that curtail personal rights

The Court has applied tests other than the two

For example the Court uses a somewhat different stanshy

dard in examining the legality of orders that violate

rights guaranteed by the UCMJ This makes very little

practical difference as the result in this instance

should be the same regardless of whether this separate

standard is applied or the other two tests are utilized

The major problem area though at this time is in the

field of orders that restrict personal rights

With regard to trial matters involving legality

of orders the trial defense counsel must keep in mind

that should he fail to raise the issue of legality of

an order at the trial level he may find that he is preshy

cluded from raising the issue for the first time on

appeal This is certainly true as to orders that are

apparently legal from the wording of the specification

On the other hand an attack may be made for the first

time on appeal on an order that is so palpably illegal

that the specification fails to state an offense

However the defense would be well advised to raise the

issue of legality at the trial level

The trial counsel when dealing with orders that

restrict personal rights must remember that the eleshy

ments of reasonableness and military necessity will

vary from one factual situation to another An applishy

cation of the Martin test often involves a question of

degree and a fine line between the legality or illegalshy

ity of an order He must therefore be certain that he

introduces sufficient evidence of the local circumshy

stances that prompted the issuance of the questioned

Law officers must look beyond the sample instrucshy

tions provided in the law officer handbook to frame

proper instructions in cases involvinglaquothe legality of

an order Consideration must be given to removing any

implication from the instructions that a presumption

of law rather than a justifiable inference exists as

to the legality of orders As to orders involving pershy

sonal rights of a servicemember the instructions must

reflect the test currently applied by the Court of

Military Appeals rather than the military duty test as

indicated in the present sample instructions in the

law officers handbook

Concerning the general area of orders that affect

the personal rights of individuals it is submitted

that in all probability there are general orders in

existence today that will not meet the tests for legalshy

ity contained in the Courts recent opinions This is

not surprising because under the previously accepted

military duty test almost any order to a servicemember

could be argued to relate to military duty in some way

Th-e Martin test is of course more restrictive in

nature

There has been very little written on this subshy

ject in the past Is a result there has probably been

a tendency to look only to the military duty test for

legality that has been generally accepted as the proper

test for many years However we now realize that as

to orders restrictive of personal rights the more rigid

requirements of the Martin test are to be imposed

While there certainly remains room for argument

as to the legality of certain orders involving personal

rights there are problem areas that may now be more

clearly answered by the principles announced in the

Courts opinions An example of this is to be found

in the controversial area of control of off-post traffic

by overseas commanders An even clearer example of the

illegality of an order under the rationale of recent

cases in this field would be an order that requires

off-duty servicemembers to wear a coat and tie when

wearing civilian clothing into civilian communities in

overseas areas This type of order is not likely to

come before the Court of Military Appeals However

this is certainly no reason for its continuing existence

There can be no doubt that the Court has furnished

a specific test to measure the legality of orders that

affect personal rights This test is reasonable and

as implemented by the cases discussed herein furnishes

the most practical guidelines available to determine

the legality of such orders This particular area of

military law has been more clearly defined in cases

subsequent to 1957 In view of this fact it would be

well to review existing general orders in this field

to determine whether sach orders meet the now estabshy

lished requirements for legality If a commander is to

effectively achieve the military mission of his command

he must constantly be aware of his authority and the

limitations upon that authority in the important area

of legality of orders

CASES AND AUTHORITIES CITED

TABIJg OF CASES

112 Amie United S t a t e s v 7 USCMA 51+

22 CMR 30^ (1957) B a l l United S t a t e s v 8 USCMA 25

23 CMR 2^9 (1957) Barnes ACM S-68M5 12 CMR 735 (1953) Bayes CM 3885^5 22 CMR h$7 (1956) Bayhand United States v 6 USCMA 762

21 CMR 8h (1956) Berry United States v 6 USCMA 609

20 CMR 325 (1956) Bohn v S t a t e 67 Utah 362 2 -8 Pac 119 (1926) Bouie United S t a t e s v 9 USCMA 228 26 CMR 8

11958) Buttriek ACM 9652 j iscMR622(195 5 Gates United States v 9 USCMA 80

26 CMR 260 (1958) Connell United States v 7 USCMA 228

22 CMR 18 (1956) Coombs United States v 8 USCMA 7^9

25 CMR 253 (1958) Cupp ACM 134-62 2k CMR 565 (1957) Dupree United States v 1 USCMA 665

5 CMR 93 (1952) Ewing ACM 6U1 10 CMR 612 (1953) Fidler United States v 12 USCMA h$

31 CMR ho (I960) Fisher United States v h USCMA 152

15 CMR 152 (195+) Fout United States v 3 USCMA 565

13 CMR 121 (1953) Ginn United States v 1 USCMA +53

h CMR i5 (1953) Gordon ACM S-2130 3 C M 603 (1952) Greer United States v 3 USCMA 576

13 CMR 132 (1953) Grosso United States v 7 USCMA 566

23 CMR 30 (1957) Haskins United States v 11 USCMA 365

29 CMR 181 (I960) Reims United States v 3 USCMA U-18

12 CMR Vk (1953) 71 112

pound-lt-

66 116 133

bull bull bull J-jU

raquo raquo bull iXjj

109 111 133

102 115 119 22

112 69

Henny United S t a t e s v h USCMA 158 15 CMR 158 (195h) 119

Hill United States v 12 USCMA 9 30 CMR 9 (I960) 56

Hill ACM S-2898 5 CMR 665 (1952) 15 Holder United States v 7 USCMA 213

22 CMR 3 (1956) 112Hosford CM 281923 5h BR 26l (19^5) 73Hughes ACM 5626 7 CMR 803 (1953) 88Jenkins United States v 58 F2d 556

VTttl V J I F lyjei) laquo laquo laquo laquo lt laquo raquo raquo bull lt bull gt XX 7

Jones United States v 7 USCMA 83 21 CMR 209 (1956) llii-

Jordan 7 USCMA If52 22 CMR 2f2 (1957) 55Jordan CM 03928 30 CMR i+2^ (I960) h2Kapla ACM 12539 22 CMR 825 (1956) 33 131 Kinder ACM 7321 lf CMR 7^2 (195h) 6 +Kirksey United States v 6 USCMA 556

20 CMR 272 (1955) 12gt+Larrison United States v 2h F2d 82

(7th Cir 1928) 119 Levinsky WC NCM 60-006l5 30 CMR 6^1 (i960) M+ Long United States v 8 USCMA 93

23 CMR 317 (1957) 68Marsh United States v 3 USCMA hamp

11 CMR k8 (1953) ^7Mart in United S t a t e s v 1 USCMA 67^ 5 CMR 102

(1952) 6 19 2 3 25 28 3 8 hi if7 hy 69 75 131 136

Masusoek United S t a t e s v 1 USCMA 3 2 1 CMR 32 (195D 118

Matthews United States v 8 USCMA 9+ 23 CMR 318 (157) 68

McCarthy CM 39^689 23 CMR 561 (1957) 67McNeill United States v 2 USCMA 383

9 CMR 13 (1953) 129 Mi l ldeb rand t United S t a t e s v 8 USCMA 635

25 CMR 139 (1958) 25 3 8 i f i if7 75 97 12raquof 133 M i t c h e l l United S t a t e s v 7 USCMA 238

22 CMR 38 (1956) 119Morgan ACM 9036 17 CMR 5amph (195^) 102 115 130 Morris ACM 15690 27 CMR 965 (1952) 119Musguire United States v 9 USCMA 67

25 CMR 329 (1958) IB 55 Nat ion United S t a t e s v 9 USCMA 72+

25 CMR 8 (1958) 2 9 hO J+3 1^3

Orne las United S t a t e s v 2 USCMA 96 6 CMR 96 (1952)

Parker ACM S-10012 18 CMR 559 (195^) Payne CM 302885 59 3R 133 (19^5) Peterson ACM 8289 16 CMR 565 (1950 Petree United States v 8 USCMA 9

23 CMR 233 (1957) Pinkston United States v 6 USCMA 700

21 CM 22 (1956) Reams United States v 9 USCMA 696

26 CMR h76 (1958) Richardson United S t a t e s v 1 USCMA 558

k CMR 150 (1952) Robinson United States v 6 USCMA 3^7

20 CMR 63 (1955) Roadcloud CM 356552 6 CMR 38^ (1952) Rosato United States v 3 USCMA 1^3

11 CMR 1-3 (1953) Sell United States v 3 USCMA 202

11 CMR 202 (1953) Semioli CM 280115 53 BR 65 (19^5) Shields CM 2^9667 32 BR 1+9 (19W Simmons United States v 1 USCMA 691

5 CMR 119 (1952) Smith United States v 9 USCMA 2 -0

26 CMR 20 (1958) Smith United States v 12 USCMA 56+ 31 CMR 150 Stephenson v State 119Ohio 3^916VM 359

( 1 GO A

Stringer United States vj h USCMA +95 16 CMR 68 (195^)

Tracz CM 2199^6 12 BR 317 (19^1) Irani United States v 1 USCMA 293

3 cm 27 (1952) Vansant United S t a t e s v 3 USCMA 3 0

11 CMR 30 (1953) Voorhees United States v h USCMA 509

16 CMR 83 (1950 Vahl ACM h7h2 h CMR 767 (1952) Wheeler United States v 12 USCMA 387

30 CMR 387 (1961) Wilson United States v 12 USCMA 165

30 CMR 165 (1961) Wilson CM 351835 h CMR 311 (1952)

70 112 123 127

112 111

65 109

63 18 22 36 77

8 9 W+ 7h

Wolverton ACM 3-550^ 10 CM 6-1 (1953)

37 75 110

33 117 122 88

Woolbrlght United States v 12 USCMA k50 31 CMR 36 (1961) 120

Wysong United States v 9 USCMA 2^9 26 CM 29 (1958) 16 25 35

Young United States v 8 USCMA 70 2+ CMR 70 (1957) 68

Yunque-Burgos United States v 3 USCMA 1+98 13 CMR 5^ (1953) 6 32 80 95

Opinions of The Jadge Advocates General of The Armed Forces

JAG 220k6 (Sep 9 1931) JAG 001+69 (May 18 1932) JAG 537 (May 13 1933) SPJA 19^7851 ltAus lgt 1 9 W SPJGA 19^62785 (March 22 19+6) JAGA 19521133 (Feb k 1952) JAGA 19525213 (June 19 1952) JAGA 19525707 (July 3 1952) JAGA 195290^+5 (Nov 20 1952) JAGA 19536701 (Sep 1 1953) JAGA 195+5i+82 (June 11 195+) JAGA 195V6913 (Aug 5 195+) JAGA l951+7i+32 (Aug 27 195+) JAGA 195V8196 (Oct 11 195^) JAGA 19553672 (April 13 1955) JAGA 19559288 (Nov lk 1955) JAGJ 19561730 (Feb 15 1956) JAGA 1956821^+ (Nov 9 1956) JAGA 19568622 (Nov 23 1956) JAGA 19575798 (July 5 1957) JAGA 19577^17 (Sep 20 1957) JAGJ 1957578 (Oct 2 1957) JAGA 195851^7 (July 10 1958) JAGJ 19608230 (Mar 10 i960) JAGA 19603793 (Mar 22 i960) JAGA 19605198 (Dec 16 i960) JAGA 19613^16 (Jan 6 1961) JAGJ 19618323 (Apr2+ 1961) JAGA 1961A821 (Aug 18 1961)

83 8i+

bh 3pound 36 83

3k 83 8+ 83 bk 83 83 86 86 86 88 8^ 88 86

8^ 88 86

101 103 85 85 88 86

Air Force

1 Dig Ops JAG P o s t Bases e t c sectsect 29 5 (Oct 22 195D 81+

A r t i c l e s of The Uniform Code of M i l i t a r y J u s t i c e

A r t i c l e

5lb 90~ 91 92

bull bull bull laquo bull laquo bull bull bull bull Q

raquo bull bull bull bull bull 2 j ) (

raquo bull bull bull laquo bull raquo JLtzQ

1 3 13 72 107 110 1 1 3 56 107 110

2 13 57 87 98 107 110 32

Manual for C o u r t s - M a r t i a l United S ta tes 1951

Paragraph

67a 123 126 O copy bull bull bull bull bull bull bull bull Xpound~

X3 0r3 bull bull bull raquo bull bull bull bull bull XXUXyUD bull bull bull bull bull laquo gt169b ^ 1 2 56 72 102

109 115 133 XUQ bull bull bull raquo bull X3X XS^ bull bull bull bull bull bull bull bull X^ X J

MISCELLANEOUS

Corpus Juris Secundum Vol VI Army and Navy sectsect + + Army Regs No 320-5 (Jan 1961) 5lArmy Regs No 600-10 (Dec 19 1958) 101 Army Regs No 600-24-0 (October 1^ 1953) ^2Army Regs No 608-61 (September 20 1957) +2 U S Dept of Army FM 21-10 May 6 1957 101 U S Dept of Army Pamphlet No 27-9 Military

Justice HandbookmdashThe Law Officer (1958) 105 107 110

Memorandum of Business and Minutes of Interservice Legal Committee l8th Session May 22-2f 1961 86

Winthrop Military Law and Precedents (2d ed reprint 1920) 3 28 62

TITLE PAGE

THE AUTHOR

TABLE OF CONTENTS

CHAPTER I - INTRODUCTION

CHAPTER III - CURRENT PROBLEM AREAS

CHAPTER IV - TRIAL AND APPELLATE PROBLEMS

CHAPTER V - SUMMARY AND CONCLUSIONS

ftB 14 et

JL 35 19amp~b

THE AUTHOR

TABLE OF CONTENTS

Summary 7^

In General 82

CHAPTER I

INTRODUCTION

orders

legality

3 Chapter III infra

orders

in time of war

13 CMR $h (1953)

Court stated

16 Id at 500 13 Cm at 56

Personal Rights

1 12 USQMA 38 30 CMR 38 (1961)

stated

orders

CHAPTER II

guidance

general principles

incrimination

Of Legality

31 Id at 66 5 CMR at 10^

Martin test

38 h USCMA 509 16 CMR 83 (195+)

freedom of speech

39 Id at 529 16 CMR at 103

speech

od of leave

states

following language

orders

of review 51+

56 9 tJSCMA 2^9 26 CMR 29 (1958)

and certain

58 12 USCMA 165 30 CMR 165 (1961)

59 Id at 166 30 CMR at 166

62 9 USCMA 72h 26 CMR 50^ (1958)

lawful order

waiting period

68 orders

period

71 Id at 388 30 CMR at 388

cessing

military service

72 Id at 388-89 30 CMR at 388-89

73 12 USCMA 56^ 31 CMR 150 (1961)

(1953)

ampQ 9 USCMA 67 25 CMR 329 (1958)

82 9 USCMA 2^0 26 CMR 20 (1958)

surrender them

Open Mess

86 6 USCMA 3+7 20 CMR 63 (1955)

orders

92 Ibid

93 3 tJSCMA 30 11 cm 30 (1953)

be noted

order drill

101 3 USCMA +8 11 CMR hH (1953)

issue such orders

103 ACM S-2130 3 CMR 603 (1^52)

legal orders

Pinkston

10U- Id at 606 105 6 DSCMA 700 21 CMR 22 U956)

cordingly illegal

Summary

Wheeler case

accused

such orders

particular areas

CHAPTER III

questionable areas

In General

authorities

gtmmai 126

Overseas Commands

regard to France

135 JAGA 1961A821 (Aug 18 1961)

and Germany

the host country

military

United States

situation

Off-Duty

service

the service

such factors

service

Reasons

officer

religious beliefs

service

CHAPTER IV

structional area

150 Id at 132

service

152 Id at 85

a personal right

handbook

159 Id at 132160 Para 138a MCM (195D

defense sua sponte

intoxication

18 (1956)

time on appeal

177 CM 351835 CMR 311 (1952)

178 1 USCMA 32 1 CMR 32 (195D

viously mentioned

190 9 USCMA 131 25 CMR 393 (1958)

appeal

General

officers ruling

innocence

circumstances

CHAPTER V

the military permit

as to such orders

nature

TABIJg OF CASES

12 CMR Vk (1953) 71 112

pound-lt-

66 116 133

bull bull bull J-jU

109 111 133

102 115 119 22

112 69

(1952) 6 19 2 3 25 28 3 8 hi if7 hy 69 75 131 136

25 CMR 8 (1958) 2 9 hO J+3 1^3

( 1 GO A

70 112 123 127

112 111

65 109

63 18 22 36 77

8 9 W+ 7h

Wolverton ACM 3-550^ 10 CM 6-1 (1953)

37 75 110

33 117 122 88

83 8i+

bh 3pound 36 83

3k 83 8+ 83 bk 83 83 86 86 86 88 8^ 88 86

8^ 88 86

101 103 85 85 88 86

Air Force

A r t i c l e

5lb 90~ 91 92

1 3 13 72 107 110 1 1 3 56 107 110

2 13 57 87 98 107 110 32

Paragraph

MISCELLANEOUS

TITLE PAGE

THE AUTHOR

TABLE OF CONTENTS

THE AUTHOR

TABLE OF CONTENTS

Summary 7^

In General 82

CHAPTER I

INTRODUCTION

orders

legality

3 Chapter III infra

orders

in time of war

13 CMR $h (1953)

Court stated

16 Id at 500 13 Cm at 56

Personal Rights

1 12 USQMA 38 30 CMR 38 (1961)

stated

orders

CHAPTER II

guidance

general principles

incrimination

Of Legality

31 Id at 66 5 CMR at 10^

Martin test

38 h USCMA 509 16 CMR 83 (195+)

freedom of speech

39 Id at 529 16 CMR at 103

speech

od of leave

states

following language

orders

of review 51+

56 9 tJSCMA 2^9 26 CMR 29 (1958)

and certain

58 12 USCMA 165 30 CMR 165 (1961)

59 Id at 166 30 CMR at 166

62 9 USCMA 72h 26 CMR 50^ (1958)

lawful order

waiting period

68 orders

period

71 Id at 388 30 CMR at 388

cessing

military service

72 Id at 388-89 30 CMR at 388-89

73 12 USCMA 56^ 31 CMR 150 (1961)

(1953)

ampQ 9 USCMA 67 25 CMR 329 (1958)

82 9 USCMA 2^0 26 CMR 20 (1958)

surrender them

Open Mess

86 6 USCMA 3+7 20 CMR 63 (1955)

orders

92 Ibid

93 3 tJSCMA 30 11 cm 30 (1953)

be noted

order drill

101 3 USCMA +8 11 CMR hH (1953)

issue such orders

103 ACM S-2130 3 CMR 603 (1^52)

legal orders

Pinkston

10U- Id at 606 105 6 DSCMA 700 21 CMR 22 U956)

cordingly illegal

Summary

Wheeler case

accused

such orders

particular areas

CHAPTER III

questionable areas

In General

authorities

gtmmai 126

Overseas Commands

regard to France

135 JAGA 1961A821 (Aug 18 1961)

and Germany

the host country

military

United States

situation

Off-Duty

service

the service

such factors

service

Reasons

officer

religious beliefs

service

CHAPTER IV

structional area

150 Id at 132

service

152 Id at 85

a personal right

handbook

159 Id at 132160 Para 138a MCM (195D

defense sua sponte

intoxication

18 (1956)

time on appeal

177 CM 351835 CMR 311 (1952)

178 1 USCMA 32 1 CMR 32 (195D

viously mentioned

190 9 USCMA 131 25 CMR 393 (1958)

appeal

General

officers ruling

innocence

circumstances

CHAPTER V

the military permit

as to such orders

nature

TABIJg OF CASES

12 CMR Vk (1953) 71 112

pound-lt-

66 116 133

bull bull bull J-jU

109 111 133

102 115 119 22

112 69

(1952) 6 19 2 3 25 28 3 8 hi if7 hy 69 75 131 136

25 CMR 8 (1958) 2 9 hO J+3 1^3

( 1 GO A

70 112 123 127

112 111

65 109

63 18 22 36 77

8 9 W+ 7h

Wolverton ACM 3-550^ 10 CM 6-1 (1953)

37 75 110

33 117 122 88

83 8i+

bh 3pound 36 83

3k 83 8+ 83 bk 83 83 86 86 86 88 8^ 88 86

8^ 88 86

101 103 85 85 88 86

Air Force

A r t i c l e

5lb 90~ 91 92

1 3 13 72 107 110 1 1 3 56 107 110

2 13 57 87 98 107 110 32

Paragraph

MISCELLANEOUS

TITLE PAGE

THE AUTHOR

TABLE OF CONTENTS

THE AUTHOR

TABLE OF CONTENTS

Summary 7^

In General 82

CHAPTER I

INTRODUCTION

orders

legality

3 Chapter III infra

orders

in time of war

13 CMR $h (1953)

Court stated

16 Id at 500 13 Cm at 56

Personal Rights

1 12 USQMA 38 30 CMR 38 (1961)

stated

orders

CHAPTER II

guidance

general principles

incrimination

Of Legality

31 Id at 66 5 CMR at 10^

Martin test

38 h USCMA 509 16 CMR 83 (195+)

freedom of speech

39 Id at 529 16 CMR at 103

speech

od of leave

states

following language

orders

of review 51+

56 9 tJSCMA 2^9 26 CMR 29 (1958)

and certain

58 12 USCMA 165 30 CMR 165 (1961)

59 Id at 166 30 CMR at 166

62 9 USCMA 72h 26 CMR 50^ (1958)

lawful order

waiting period

68 orders

period

71 Id at 388 30 CMR at 388

cessing

military service

72 Id at 388-89 30 CMR at 388-89

73 12 USCMA 56^ 31 CMR 150 (1961)

(1953)

ampQ 9 USCMA 67 25 CMR 329 (1958)

82 9 USCMA 2^0 26 CMR 20 (1958)

surrender them

Open Mess

86 6 USCMA 3+7 20 CMR 63 (1955)

orders

92 Ibid

93 3 tJSCMA 30 11 cm 30 (1953)

be noted

order drill

101 3 USCMA +8 11 CMR hH (1953)

issue such orders

103 ACM S-2130 3 CMR 603 (1^52)

legal orders

Pinkston

10U- Id at 606 105 6 DSCMA 700 21 CMR 22 U956)

cordingly illegal

Summary

Wheeler case

accused

such orders

particular areas

CHAPTER III

questionable areas

In General

authorities

gtmmai 126

Overseas Commands

regard to France

135 JAGA 1961A821 (Aug 18 1961)

and Germany

the host country

military

United States

situation

Off-Duty

service

the service

such factors

service

Reasons

officer

religious beliefs

service

CHAPTER IV

structional area

150 Id at 132

service

152 Id at 85

a personal right

handbook

159 Id at 132160 Para 138a MCM (195D

defense sua sponte

intoxication

18 (1956)

time on appeal

177 CM 351835 CMR 311 (1952)

178 1 USCMA 32 1 CMR 32 (195D

viously mentioned

190 9 USCMA 131 25 CMR 393 (1958)

appeal

General

officers ruling

innocence

circumstances

CHAPTER V

the military permit

as to such orders

nature

TABIJg OF CASES

12 CMR Vk (1953) 71 112

pound-lt-

66 116 133

bull bull bull J-jU

109 111 133

102 115 119 22

112 69

(1952) 6 19 2 3 25 28 3 8 hi if7 hy 69 75 131 136

25 CMR 8 (1958) 2 9 hO J+3 1^3

( 1 GO A

70 112 123 127

112 111

65 109

63 18 22 36 77

8 9 W+ 7h

Wolverton ACM 3-550^ 10 CM 6-1 (1953)

37 75 110

33 117 122 88

83 8i+

bh 3pound 36 83

3k 83 8+ 83 bk 83 83 86 86 86 88 8^ 88 86

8^ 88 86

101 103 85 85 88 86

Air Force

A r t i c l e

5lb 90~ 91 92

1 3 13 72 107 110 1 1 3 56 107 110

2 13 57 87 98 107 110 32

Paragraph

MISCELLANEOUS

TITLE PAGE

THE AUTHOR

TABLE OF CONTENTS

Summary 7^

In General 82

CHAPTER I

INTRODUCTION

orders

legality

3 Chapter III infra

orders

in time of war

13 CMR $h (1953)

Court stated

16 Id at 500 13 Cm at 56

Personal Rights

1 12 USQMA 38 30 CMR 38 (1961)

stated

orders

CHAPTER II

guidance

general principles

incrimination

Of Legality

31 Id at 66 5 CMR at 10^

Martin test

38 h USCMA 509 16 CMR 83 (195+)

freedom of speech

39 Id at 529 16 CMR at 103

speech

od of leave

states

following language

orders

of review 51+

56 9 tJSCMA 2^9 26 CMR 29 (1958)

and certain

58 12 USCMA 165 30 CMR 165 (1961)

59 Id at 166 30 CMR at 166

62 9 USCMA 72h 26 CMR 50^ (1958)

lawful order

waiting period

68 orders

period

71 Id at 388 30 CMR at 388

cessing

military service

72 Id at 388-89 30 CMR at 388-89

73 12 USCMA 56^ 31 CMR 150 (1961)

(1953)

ampQ 9 USCMA 67 25 CMR 329 (1958)

82 9 USCMA 2^0 26 CMR 20 (1958)

surrender them

Open Mess

86 6 USCMA 3+7 20 CMR 63 (1955)

orders

92 Ibid

93 3 tJSCMA 30 11 cm 30 (1953)

be noted

order drill

101 3 USCMA +8 11 CMR hH (1953)

issue such orders

103 ACM S-2130 3 CMR 603 (1^52)

legal orders

Pinkston

10U- Id at 606 105 6 DSCMA 700 21 CMR 22 U956)

cordingly illegal

the confinement of

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